IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 Crl.MC.No. 4800 of 2008() ------------------------------------- C.P.206/2008 OF JUDICIAL 1ST CLASS MAGISTRATE KASARAGODE PETITIONER(S): CW 1 TO 3: ---------------------------------------------- 1. RAHISTA D/O.RAZAK SAHIB, NALLANGI PADAVU HOUSE, BEKERY JUNCTION, VERKKADY GRAMAM, MANJESWAR. 2. REHMATH, W/O. RAZAK SAHIB, -DO- 3. RAZAK SAHIB, RESIDING -DO- BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): ACCUSED/COMPLAINANT &STATE: ------------------------------------------------------------------------------- 1. ASHRAF AMEERKHAN, AGED 21 YEARS, S/O.ISMAIL, NOOR ARYA SAMAJ ROAD, SWEET HOME APARTMENTS, BELMUTTA MANGALORE, NOW RESIDING AT FAHISA MANZIL,NALLIAGIPADHAV, BAKERY JUNCTION, VERKADY VILLAGE. 2. THE S.I. OF POLICE, MANJESWAR POLICE STATION. 3. STATE REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI. CIBI THOMAS FOR R1 PUBLIC PROSECUTOR SRI. GIKKU JACOB FOR R2 & R3 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4800 of 2008 ------------------------------------------------- Dated this the 21st day of January, 2009 ORDER The petitioners are the victim, her mother and her father respectively in an indictment for offences punishable under Secs.363 and 376 IPC. The alleged offence has been committed by the accused/1st respondent herein. Cognizance was taken on the basis of a final report submitted by the police after due investigation in a crime. That crime, in turn, was registered on the basis of a complaint lodged by the 3rd petitioner before the police. In such complaint, he alleged that the 1st petitioner - his minor daughter aged about 14 years, was missing and the 1st respondent is suspected to have taken away the girl. The 1st petitioner was a minor at the relevant time and she was under the care and custody of her parents i.e., petitioners 2 and 3. 2. In the course of investigation, it was revealed that the Crl.M.C. No. 4800 of 2008 -: 2 :- 1st petitioner and the 1st respondent were in love. The 2nd and 3rd petitioners, though they allegedly approved their relationship initially, did not later approve of such relationship. The 1st petitioner was perturbed about that event and had, it is alleged, attempted to commit suicide by cutting a vein on her wrist. She was removed to the house of an aunt of hers. But while she was there in the house of the aunt, she allegedly informed the 1st respondent and threatened to commit suicide if the 1st respondent would not go to the house of the aunt and take her away from that house. Accordingly, it is alleged that the 1st respondent went to the house where the 1st petitioner was available in a car and took her away in such car initially to Mangalore and then to Bangalore. At Bangalore, they did not get the support and assistance from a relative of the 1st respondent and they were obliged to reside in a lodge. There the 1st petitioner and the 1st respondent allegedly had sexual intercourse - of course, with the consent of the 1st petitioner. In the course of investigation, the 1st petitioner and the 1st respondent were taken into custody and were produced before the learned Magistrate. It is thereafter on completion of investigation that the final report was filed. The 1st respondent was arrested. He remained in custody for about a fortnight. In Crl.M.C. No. 4800 of 2008 -: 3 :- the meantime, the matters were talked over. It was the 2nd and 3rd petitioners who arranged to get the 1st respondent out of bail. Even before the bail court it was reported that there has been a settlement of dispute and that it was agreed that the 1st respondent and the 1st petitioner will enter legal matrimony. It is now submitted that the 1st petitioner and the 1st respondent have contracted a legal marriage with the knowledge, consent and approval of the relatives of both of them. They are now residing together as spouses, it is submitted. 3. The criminal prosecution against the 1st respondent is pending even now. The parties having settled all their outstanding disputes, the petitioners having compounded all the offences allegedly committed by the 1st respondent and the 1st petitioner and the 1st respondent having entered legal matrimony, it is now prayed that the extraordinary inherent jurisdiction available to this Court under Sec.482 Cr.P.C. as enabled by the dictum in Madhan Mohan Abbot v. State of Punjab (2008 AIR SCW 2287); Nikhil Merchant v. C.B.I. (2008 (3) KLT 769 (SC)) and Manoj Sharma v. State (2008 (4) KLT 417) may safely be invoked to bring to premature termination the unnecessary and irrelevant prosecution pending against the 1st respondent. Crl.M.C. No. 4800 of 2008 -: 4 :- 4. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor, after taking instructions and after recording the statements of all the petitioners, now reports that the State has no objection against the quashing of the prosecution against the 1st respondent. The petitioners and the 1st respondent have filed a joint application for composition duly signed by them and duly countersigned by their respective counsel. 5. The girl was aged below 14 years at the relevant time. As per law, a girl below 15 years is not legally competent to consent to sexual intercourse. Consent of the girl or her parents will not justify the culpable conduct alleged against the 1st respondent. In these circumstances, this Court entertained an apprehension whether it would be proper to invoke the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. 6. Powers under Sec.482 Cr.P.C. are awesome and wide in its sweep and amplitude. Sec.482 Cr.P.C. does not really confer any powers on the High Court; but only reserves the powers which the High Court inherently has to act in aid of justice. It has often been held that the wide powers under Sec.482 Cr.P.C. can be invoked even to do justice beyond the law. 7. I take note of all the relevant circumstances. I note that Crl.M.C. No. 4800 of 2008 -: 5 :- the 1st petitioner and the 1st respondent are distantly related. I note that they were in love and their parents were aware of their relationship. I note that the 1st petitioner had attempted to commit suicide in the wake of reluctance on the part of her parents to approve the relationship later. I take note that she had continued to threaten to commit suicide. I note that the 1st respondent had gone to the house of the 1st petitioner; when informed of the threat that the 1st petitioner would commit suicide. I take all the sequence of events including legal matrimony between the 1st petitioner and the 1st respondent. I take note of the fact that they are harmoniously residing together after marriage with the consent and approval of all the relatives. I take note of the fact that if truth were revealed by the 1st petitioner before court, the alleged sexual intercourse between her and the 1st respondent will amount to the technical offence of rape and the 1st respondent shall have to be convicted. I take note that to avoid that unwholesome consequence, the 1st petitioner will be obliged to speak falsehood before court to save her spouse. I take note of the injustice and the trauma that would result from such course. The need to avoid the consequence of compelling a spouse to speak falsehood on oath to save her partner from punishment is also taken note of by me. Crl.M.C. No. 4800 of 2008 -: 6 :- I take note of the fact that the State does not raise any objections against the prayer for quashing of the proceedings. I take note that the prosecution is under Sec.321 competent to seek withdrawal of the case of course with permission of court. 8. Having considered all the relevant circumstances and having rendered my anxious consideration to all the issues involved, I am persuaded to agree that the best course that this Court can now follow in the interests of justice is to direct quashing of the unnecessary and irrelevant prosecution against the 1st respondent notwithstanding the fact that the admitted facts do point to the commission of an offence of rape – a technical statutory rape even if it is assumed that they were legally married. 9. In the result: (a) This Crl.M.C. is allowed. (b) Prosecution against the 1st respondent on the basis of the final report in Crime No.76/08 of the Manjeswar Police Station pending before the learned JFCM, Kasaragod, as C.P.No.206/08 is hereby quashed. Nan/ (R. BASANT, JUDGE) Crl.M.C. No. 4800 of 2008 -: 7 :-