IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 Crl.MC.No. 2447 of 2008() ------------------------- L.P.C.NO.8/06 & C.P.NO.80/03 OF J.F.C.M, TALIPARAMBA CRIME NO.249/02 OF TALIPARAMBA POLICE STATION PETITIONER: ACCUSED ------------ P.PAVITHRAN, S/O. KUNHAMBU, AGED 34 YEAR KANDAMBETH HOUSE,MAVICHERI, KUTTIYERI AMSOM TALIPARAMBA TLUK, KANNUR DISTRICT BY ADV. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI RESPONDENTS: ------------- 1. STATE REPRESENTED BY CIRCLE INSPECTOR OF POLICE TALIPARAMBA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, AT ERNAKULAM. 2. KALATHIL KUNHIRAMAN, S/O. KUNHIRAMAN AGED 49 YEARS, MAVICHERI, KUTTIYERI AMSOM TALIPARAMBA TALUK, KANNUR DISTRICT 3. K.RAJIMA, D/O. KUNHIRAMAN AGED 19 YEARS, MAVICHERI, KUTTIYERI AMSOM BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.2447 of 2008 ------------------------------------- Dated this the 7th day of July, 2008 ORDER Petitioner faces indictment in a prosecution for the offence punishable under Section 376 I.P.C. The crux of the allegations against the petitioner is that the petitioner had committed rape on the daughter of the defacto complainant after trespassing into the house of the defacto complainant. The victim girl had only completed the age of 12 years and had not completed the age of 13 years at the relevant time. The alleged incident took place on 07.01.02. The complaint was filed before the learned Magistrate on 24.01.02 and the same was referred to the police under Section 156(3) Cr.P.C. Investigation has been completed. Final report has been filed. Cognizance has been taken. The petitioner is reported to be absconding. Coercive processes have been issued against the petitioner by the learned Magistrate. The petitioner apprehends imminent arrest. 2. At this stage the petitioner has come before this Court with this application under Section 482 Cr.P.C. He prays that the prosecution against him may be quashed invoking the extraordinary inherent jurisdiction under Section 482 Cr.P.C. Crl.M.C. No.2447 of 2008 2 3. What is the ground ? The learned counsel for the petitioner submits that the parties have now settled the matter. An amount of Rs.1,15,000/- has been paid by the petitioner to the victim girl as compensation. All outstanding disputes have been settled. The victim/defacto complainant or her parents do not now want to prosecute the petitioner for the alleged offence as they have now realised that as a matter of fact no offence has been committed. In these circumstances composition may be accepted and invoking the powers under Section 482 Cr.P.C proceedings against the petitioner may be quashed, submits the learned counsel for the petitioner. 4. The 3rd respondent or the 2nd respondent/father of the defacto complainant has not appeared before this Court to confirm that the matter has been settled. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor submits that though it is revealed that there has been illegal composition of the grave offence of rape etc. allegedly committed by the petitioner herein by respondents 2 and 3, this is not a fit case where the composition can be accepted. The offence alleged is not a compoundable. The learned counsel for the petitioner falls back on the dictum in Madan Mohan Abbot v. State of Crl.M.C. No.2447 of 2008 3 Punjab [2008 A.I.R SCW 2287]. He contends that a commonsense approach is to be adopted as nothing fruitful is likely to come out of the prosecution. An attitude not hedged by the technicalities of law may be adopted by the court to save the petitioner from the trauma of such a prosecution against him it is prayed. 5. The learned Public Prosecutor vehemently opposes the application. Assuming that respondents 2 and 3 have settled their disputes and have compounded the offences, the alleged offence being non compoundable, no composition can be accepted. The composition has no legs to stand on in the eye of law. Even if the actual victim and her guardian/father have settled the disputes and compounded the offence, the law cannot take note of such composition. It may not be lost sight of the fact that the alleged offence has been committed on a 12 year old girl. It is idle to assume that the offence is one that is personal between the victim and the accused or between the father/guardian of the victim and the accused. The dictum in Madan Mohan Abbot v. State of Punjab may not be understood to obliterate the distinction between compoundable and non compoundable offences. All relevant circumstances may Crl.M.C. No.2447 of 2008 4 be taken into consideration. All the available inputs may be reckoned as crucially important and in the facts and circumstances of this case the prayer to bring to premature termination the prosecution against the petitioner by invoking the dictum in Madan Mohan Abbot v. State of Punjab may not be allowed, submits the learned Public Prosecutor . 6. I fully agree with the learned Public Prosecutor. I am not persuaded to agree that this is a fit case where the dictum in Madan Mohan Abbot v. State of Punjab can, need or ought to be invoked. It would perpetuate injustice and not justice if such a composition is accepted. The offence in this case must be held to be too serious and not one which can be left to the private citizens to talk over, negotiate, settle and compound. I am persuaded to agree that the composition cannot be accepted and the further proceedings cannot be dropped. 7. It may be true that if the witnesses do not speak the truth on oath and the prosecution is not able to extract from the witnesses what according to the prosecution is the truth before the trial court the prosecution may not succeed. The mere fact that the prosecution may not succeed is not according to me a sufficient reason to invoke the dictum in Madan Mohan Abbot Crl.M.C. No.2447 of 2008 5 v. State of Punjab and close the proceedings against the petitioner. 8. The learned counsel for the petitioner submits that coercive processes have been issued against the petitioner and the petitioner apprehends that his application for bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. 9. It is for the petitioner to appear before the learned Magistrate and explain to the learned Magistrate the circumstances under which he could not earlier appear before the learned Magistrate. I have no reason to assume that the learned Magistrate would not consider such application on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific direction appears to be necessary. Sufficient general directions have already been issued in Alice George v. The Deputy Superintendent of Police [2003(1) KLT 339]. 10. This Crl.M.C is, in these circumstances, dismissed, but with the specific observation that if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Crl.M.C. No.2447 of 2008 6 Magistrate must proceed to pass appropriate orders on merits, in accordance with law and expeditiously - on the date of surrender itself. (R.BASANT, JUDGE) rtr/-