IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 Crl.MC.No. 141 of 2011() ------------------------ CP.24/2001 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PALAKKAD CRIME NO.129/2000 OF KOTTAYI POLICE STATION .................... PETITIONER(S): ACCUSED ---------------------- MOHAN DAS,AGED 49 YEARS,S/O.MADHAVAN, AKKARAPPARAMBIL HOUSE,NADUVATHAPARA.P.O, PERINGOTTUKURUSSI,PALAKKAD DISTRICT. BY ADV. SRI.K.K.CHANDRADAS SRI.S.VIDYASAGAR RESPONDENT(S): --------------- 1. THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. VANAJA,D/O.MURIGHAN KAMBRAMKUNNU VEETTIL PERINGOTTUKURISSI VILLAGE,ALATHUR TALUK, PALAKKAD DISTRICT-678001. PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.141of 2011 -------------------------------------- Dated this the 21st day of January, 2011. ORDER This petition is filed by the accused in Crime No.129 of 2000 of Kottayi Police station for offences punishable under Sections 376 and 313 of the Indian Penal Code, case being that petitioner, in August, 1997 and thereafter subjected respondent No.2 (defacto complainant) to rape on various occasions, she conceived from the petitioner in the year, 2000 and that her pregnancy was aborted at Santhi Nursing Hospital. Case is now pending before learned Judicial First Class Magistrate-I, Palakkad in C.P.No.24 of 2001. In the meantime, petitioner has approached this Court under Section 482 of the Code of Criminal Procedure (for short, “the Code”) requesting to quash the proceedings against him on the ground that dispute has been settled between petitioner and respondent No.2. 2. I have heard learned counsel for petitioner and the Public Prosecutor. Learned Public Prosecutor also after getting instructions from the officer concerned has submitted that as between petitioner and respondent No.2 there is a settlement of the dispute. It is also submitted that respondent No.2 is married to one Senthil and is residing at Thiruppur. 3. Annexure-A1 is the FIR. In the first information statement allegedly of respondent No.2 appended to Annexure-A1, it is stated that petitioner and Crl.M.C.No.141/2011 2 respondent No.2 were working in a mulbary garden during the relevant time and while so, one day in August, 1997 petitioner had forcible sexual intercourse with her. First Information Statement goes as if she was threatened and it was under such threat that the said incident occurred. She was also threatened against disclosing the incident to anybody. It is further stated that similar incident followed on other occasions also and while so in the year, 2000 she conceived. Pregnancy was aborted allegedly at the instance of petitioner at Santhi Nursing Hospital on 11.07.2000 where petitioner took her forcibly the previous day. It is stated that petitioner had given her some pills for causing abortion and when she was taken to Santhi Nursing Hospital on 10.07.2000 she was told that she need not worry about the matter (pregnancy) and necessary action will be taken. On 11.07.2000 petitioner told the doctor that he is the husband of respondent No.2. Believing that also she agreed for abortion. Accordingly, pregnancy was aborted. 4. Case of petitioner is that the case is foisted at the instance of Krishnan Kutty, elder brother of respondent No.2. It is stated that the said Krishnan Kutty obtained signed blank papers from respondent No.2 (in which the first information statement was allegedly forged) and based on which a case was registered. It is pointed out that when petitioner applied for bail respondent No.2 filed an affidavit stating the circumstances in which the first information statement and Annexure-A1, FIR happened to come into existence. Annexure- A2 is the copy of that affidavit. There, respondent No.2 is seen to have stated that she was in love with petitioner, her brother – Krishnan Kutty disliked it, Crl.M.C.No.141/2011 3 insisted her to file complaint against petitioner, assaulted her and thereon she left her brother’s house and stayed with her sister in the house of the latter. On 04.08.2000 Krishnan Kutty assaulted her with a chopper, she was admitted in the hospital and a case was registered against Krishnan Kutty as Crime No.123 of 2000. On 14.08.2000 she was discharged from Medical College Hospital, Thrissur. On compulsion from relatives she agreed to withdraw the case against Krishnan Kutty . She was taken to the Kottayi Police Station where she was made to sign some papers. Later using the said papers Krishnan Kutty who is enmical towards petitioner lodged the first information statement. Petitioner approached the Sessions Court, Pakakkad under Section 438 of the Code. There, respondent No.2 filed Annexure-A2, affidavit. Annexure-A5 is the affidavit of respondent No.2 where she stated that she has settled the matter with petitioner and that she has no further grievance in the matter. Annexure-A4 is the copy of Final Report submitted by the Investigating Officer. 5. Now the question is whether in the light of Annexures-A2 and A5, case against petitioner could be quashed. No doubt, the Supreme Court has pointed out that when the case is purely personal to and between the parties concerned and there is a settlement between them the High Court could invoke its power under Section 482 of the Code to preserve harmonious relationship between the parties. In the present case, it is true that so far as the allegation of alleged rape is concerned, one may say that it is a matter personal to respondent No.2 and petitioner. But, there is a further charge against the petitioner, under Section 313 of the Penal Code which I am persuaded to think Crl.M.C.No.141/2011 4 is not a matter personal too and between petitioner and respondent No.2 alone. It involves feticide, ie. Illegal termination of a life in the womb of respondent No.2. That I think, is not a matter which can be squared up between petitioner and respondent No.2 whatever be the stand of former or the latter. I have also gone through the records and find that prosecution has produced records to show the alleged termination of pregnancy at Santhi Nursing Hospital on 11.07.2000 where petitioner is said to have given his consent for the said miscarriage claiming that he is the husband of the lady concerned. I also find that the Investigating Officer has questioned the Medical Officer who caused termination of pregnancy. She has also given statement in the same line. As I stated, miscarriage is a serious offence which affected the life of fetus. That matter cannot be squared, in my confirmed view because the matter has been settled between petitioner and respondent No.2. In the circumstances I am not persuaded to think that compromise entered between petitioner and respondent No.2 should result in quashing the proceedings against petitioner. For the said reasons I decline to grant relief prayed for in this petition. Resultantly this petition is dismissed. But I make it clear that any observation made herein shall not prejudice the trial court in the disposal of the case. THOMAS P.JOSEPH, Judge. cks