IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 Crl.MC.No. 515 of 2011() ------------------------ CP.27/2010 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... PETITIONER(S): ACCUSED: ------------------------------------------ SHIJU T., S/O.NARAYANAN, THORA HOUSE, KANNAPURAM EAST, CHEMMARAVAYAL, P.O.MOTTAMMEL, KANNUR DISTRICT-670 331. BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S): STATE AND DEFACTO COMPLAINANT: ------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, KANNAPURAM POLICE STATION, KANNUR DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PATTERI RISHA, D/O.P.RAVI, PATTERI HOUSE, CHEMMARAVAYAL, P.O.MOTTAMMEL, KANNUR-670 331. R1 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR R2 BY ADV. SRI.K.RAJESH SUKUMARAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.515 of 2011 ==================================== Dated this the 28th day of February, 2011 O R D E R Petitioner is accused in Crime No.19 of 2009 of Kannapuram Police Station and C.P.No.27 of 2010 of the court of learned Judicial First Class Magistrate-I, Kannur for offence punishable under Section 376 of the Indian Penal Code. Case was registered on the complaint of respondent No.2. Petitioner seeks to quash proceeding against him on the strength of a settlement reached with the second respondent. It is stated that petitioner and second respondent got married on 09.04.2010 and are living together as husband and wife. I have learned counsel for petitioner, respondent No.2 and the learned Public Prosecutor. 2. Second respondent was married to one Biju Kumar which ended in a divorce as per order dated 31.12.2008 in O.P. No.419 of 2008 of Family Court Kannur (as averred in the petition). According to the second respondent, petitioner subjected her to forcible sexual intercourse on 08.06.2007 and 26.06.2007 at a time when her marriage with Biju Kumar was subsisting. Later CRL.M.C. No.515 of 2011 -: 2 :- that Biju kumar obtained divorce against respondent from the Family Court, Kannur. Annexure-B is the marriage certificate produced to show that petitioner and second respondent got married on 09.04.2010. In the affidavit filed by respondent No.2 it is stated that since she is married to the petitioner and they are living together as husband and wife she has no grievance against petitioner. 3. Though a serious offence like Sec.376 of the IPC is attributed to the petitioner it is seen that petitioner and respondent No.2 have undergone a form of marriage as revealed by Annexure-B, certificate and are living together as husband and wife. The settlement reached between petitioner and second respondent has to be maintained. Pendency of the case shall not affect their living together as husband and wife. Moreover there is also no possibility of prosecution succeeding if the case is proceeded further. Hence I am inclined to allow this petition. In the result this Criminal Miscellaneous Case is allowed. Annexure-A, final report in Crime No.19 of 2009 of Kannapuram police station, cognizance taken and proceeding against CRL.M.C. No.515 of 2011 -: 3 :- petitioner in C.P. No.27 of 2010 of the court of learned Judicial First Class Magistrate-I, Kannur are quashed. THOMAS P. JOSEPH, JUDGE. vsv