IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 Crl.MC.No. 302 of 2011() --------- ------------------------ (CRIME NO 141 OF 2010 OF KOTTAYAM WEST POLICE STATION, KOTTAYAM) --------------------------------- PETITIONER(S): ACCUSED IN CRIME NO 141 OF 2010 ---------------------------------------------------------------------------- HARISH NARAYANAN, AGED 34 YEARS, S/O.P.K.NARAYANAN, PEEYUSH HOUSE, KOLLADU P.O., KOTTAYAM-686029. BY ADV. SRI.A.P.SUBHASH RESPONDENT(S): COMPLAINANT ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. AMBILI T.R., AGED 27 YEARS, D/O.K.K.RAJAPPAN, THRAYAMBAKAM HOUSE, KOTTAYAM VILLAGE, THIRUNAKKARA, KOTTAYAM DISTRICT. R1 BY PUBLIC PROCECUTOR SMT. M.K. PUSHPALATHA R2 BY ADV. SRI.R.RAJAGOPAL THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SMT THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.302 of 2011 --------------------------------------- Dated this 04th day of February, 2011 ORDER This proceeding has a chequered career but, parties request to have a happy culmination for it. It is alleged by the petitioner who is accused in Crime No.141 of 2010 of Kottayam West Police Station that he was in love with the second respondent and they engaged in sexual intercourse often. Second respondent apprehended that petitioner might not marry her as promised. Thereon, second respondent (then aged 27 years) preferred a private complaint in the court of learned Judicial First Class Magistrate-III (Mobile), Kottayam alleging offence punishable under Sec.376 of the Penal Code. Learned Magistrate forwarded that complaint to the Kottayam West police for investigation under Sec.156(3) of the Code of Criminal Procedure (for short, "the Code"). Annexure-A is the complaint and Annexure-B is the FIR registered by the police. Police investigated the case and reached the conclusion that it was with the consent of the second respondent that petitioner had sex with her. Accordingly, police filed Annexure-C, final report reporting the case as mistake of fact. Second respondent then was not Crl.M.C.No.302 of 2011 -: 2 :- satisfied with that report and filed Annexure-D, application seeking further investigation under Sec.173(8) of the Code. Learned Magistrate passed Annexure-G, order directing further investigation, observing that it is not for the investigating officer to decide whether sexual intercourse was with the consent of second respondent. In the light of Annexure-G, order, investigating officer filed a formal petition (Annexure-H) seeking sanction for such further investigation. On that application learned Magistrate passed order on 26.07.2010 sanctioning further investigation. Accordingly further investigation continued. 2. In the meanwhile relationship between petitioner and second respondent became cordial and it is said, they got married on October 21, 2010 and started living together as husband and wife. While so, she conceived from the petitioner. Now both request this court to quash proceedings against petitioner, the latter filing this petition under Sec.482 of the Code and the former supporting it with an affidavit dated January 29, 2011. I have heard learned counsel for petitioner, second respondent and the learned Public Prosecutor. Crl.M.C.No.302 of 2011 -: 3 :- 3. It is seen from the affidavit referred to above and sworn by the second respondent that she married petitioner on 21.10.2010 and since then are living together. She stated that she conceived from the petitioner subsequent to the marriage. Annexure-E is the certificate of marriage issued by Pavakulam Sree Mahadeva Temple, Kaloor, Cochin dated 02.11.2010 which states that Ambili D/o. K.K.Rajan of Maniyamala Madam was married to Harish Narayanan S/o. P.K Narayanan (petitioner herein) on 21.10.2010. Annexure-F is the prescription issued by Dr. Mary Joseph, Radiologist attached to the C.M.C Diagnostic Centre on 07.12.2010. That document is produced to show that second respondent is carrying. I do not find reason to disbelieve the statement of second respondent that she conceived from the petitioner. Affidavit shows that the matter is settled between her and petitioner. Virtually the affidavit and certificate support the report originally submitted by the police about the consented act of second respondent. Whatever that be, now the matter is settled between the parties and they are living together. That relationship cannot be disturbed by proceeding with the case further. Moreover, success of prosecution depends on the evidence that second respondent is to give. Having regard to the Crl.M.C.No.302 of 2011 -: 4 :- present stand of second respondent, chance of successful prosecution is bleak. Hence I am inclined to allow the petition. Resultantly this criminal miscellaneous case is allowed. Proceedings in Crime No.141 of 2010 of Kottayam West Police Station and all proceeding pursuant thereto against petitioner will stand quashed. (THOMAS P JOSEPH, JUDGE) Sbna/-