IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 Crl.MC.No. 809 of 2010() ----------------------------------- CRIME NO.317/2009 OF NILESWAR POLICE STATION. ................. PETITIONER/ACCUSED ---------------------------------- BIJOSH. K, AGED 27 YEARS, S/O.BALAKRISHNAN. C, KUNNUMMEL HOUSE, KUNHIMANGALAM.PO, KUNHIMANGALAM VILLAGE, NOW RESIDING AT HOUSE NO.15, DELMA QUARTERS, NEAR COLLECTOR'S RESIDENCE, KASARAGOD. BY ADV. MR.M.SASINDRAN, MR.JOHNY THOMAS. RESPONDENTS/COMPLAINANT ---------------------------------------------- 1. SUMITHRA. P, W/O.BIJOSH. K, HOUSE NO.15, DELMA QUARTERS, NEAR COLLECTOR'S RESIDENCE, KASARAGOD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. MR.S.R.SREEJITH. R2 BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.809 OF 2010 ------------------------------------------ Dated 23rd March 2010 O R D E R Petitioner is the accused and first respondent, the de facto complainant who is the prosecutrix in crime No.317/2009 of Nileswar police station, registered under Annexure-AI FIR for the offence under Sections 366 and 376 of Indian Penal Code and Section 3(1) (XI) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act. Case was registered on first information statement furnished by the first respondent. Allegation in Annexure-AI FIR is that first respondent is a member of Pulaya community and is working as L.D Typist in Minor Irrigation Department, Kasargod and she Crmc 809/10 2 used to go to the office at Kasargod from Neeleswar by train and during travel she got acquaintance with petitioner who is working in Industries Department at Vidya Nagar, Kasargod and acquaintance resulted in developing love between them. Petitioner promised that he will marry her. It is alleged that though first respondent was reluctant to agree for the relationship, petitioner threatened that if she refuses he will commit suicide. On 25/10/2009 at about 10.30 a.m, inducing first respondent to believe that he wanted to discuss about their marriage, she was called near patrol bunk at Neeleswar and from there promising that he will marry her he persuaded her to accompany him and she was taken. Under the guise that they are going to conduct a marriage, first respondent was allegedly taken Crmc 809/10 3 to Kunjimangalam at Payyannur and as there were some people who knew the petitioner, they returned back and they came to Bombay Hotel, Payyannur and petitioner persuaded first respondent to reside in that lodge and they stayed in a room for two days. It is alleged that during that time, he committed rape on the first respondent and thereafter on 27/10/2009 disclosing that as first respondent is a member of Pulaya community he cannot marry her, petitioner sent her in a bus. It is thereafter FI statement was furnished alleging that petitioner committed rape on her. This petition is filed under Section 482 of Code of Criminal Procedure to quash the FIR and all further proceedings contending that subsequent to the registration of the case petitioner married first respondent evidenced by Annexure- Crmc 809/10 4 AII marriage certificate and they are now living together as husband and wife and statement of first respondent was recorded by Judicial First Class Magistrate, Hosdurg under Section 164 of Code of Criminal Procedure and in Annexure-AV statement first respondent disclosed to the Magistrate that petitioner married her and she is now living with the petitioner and they got married on 15/11/2009 at Maheswari temple, Neeleswar and she has therefore, no grievance against the petitioner. 2. Case of the petitioner is that when he has already married the first respondent and they are living as husband and wife, it is not in the interest of justice to continue the prosecution. Petitioner would also contend that both the petitioner and first respondent approached District Legal Service Authority, Crmc 809/10 5 Kasargod and by Annexure-AIV order, the Legal Authority directed the petitioner to approach this court for appropriate remedy and in such circumstances, the FIR is to be quashed. 3. First respondent appeared through a counsel and filed a statement that she has already married the petitioner and they are now living cordially as husband and wife and for the peaceful life, the case is to be quashed. 4. Learned counsel appearing for the petitioner, first respondent and learned Public Prosecutor were heard. 5. Annexure-AI FIR and first information statement furnished by first respondent establish that she was on love with petitioner for about more than 1½ years before the fateful day. It is her case that they got acquaintance during their travel by Crmc 809/10 6 train and while petitioner is an employee of Industries Department at Kasargod she is L.D.Typist in Minor Irrigation Department at Kasargod. First Information Statement also discloses that she had accompanied petitioner to Payyannur and thereafter resided in a hotel room for two days, during which period it is alleged that petitioner committed rape. From the admitted facts and the subsequent marriage of the petitioner with first respondent, it is clear that sexual relationship between petitioner and first respondent, while they resided in a hotel room for two days at Payyannur can only be with the consent of the first respondent. If that be the case, it is not in the interest of justice to continue the prosecution when petitioner married her and they are living as husband and wife for the Crmc 809/10 7 sole reason that offences alleged is under Sections 366 and 376 of Indian Penal Code apart from offence under Section 3(1) (XI) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act. The very fact that petitioner and first respondent are now living together, after their marriage on 15/11/2009 at Sree Maheswari temple, evidenced by Annexure-AII establish that even if petitioner is to be prosecuted, there is no likelihood of a successful prosecution. In such circumstances, it is not in the interest of justice to continue the prosecution. Petition is allowed. Crime No.317/2009 of Nileswar police station is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.