IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 Crl.MC.No. 1134 of 2010() ----------------------- CRIME NO. 209/05 OF VELLAMDUNDA POLICE STATION, WAYANAD .......................................... PETITIONER / ACCUSED: ------------------------------------ MUHAMMED ALI, S/O.POKKER, KOMBI HOUSE, THONDARNAD.P.O, MANANTHAVADI, WAYANAD DISTRICT. BY ADV. SRI.C.A.JOSEPH RESPONDENTS / COMPLAINANT / STATE: ------------------------------------------------------------ 1. THE CIRCLE INSPECTOR OF POLICE, MANANTHAVADI POLICE STATION, MANANTHAVADI, WAYANAD DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *ADDITIONAL R3 IMPLEADED 3. AFSATH, D/O. AIMU, KOLLAMKUNNEL HOUSE, KANJIRANGAD VILLAGE, THONDARNAD P.O., MANANTHAVADI TALUK, WAYANAD DISTRICT. *ADDITIONAL R3 IMPLEADED AS PER ORDER DATED 15/6/2010 IN CRL.MA.NO. 3267/10 IN CR.MC.NO.1134/2010. R1 & R2 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1134 of 2010 -------------------------- ORDER Petitioner is the accused and third respondent, the defacto complainant in Crime No.209/2005 of Vellamunda Police Station, registered under Annexure-A FIR for the offences under Sections 376 and 506(i) of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that ingredients of the offences are not attracted and as sexual intercourse was with the consent of the victim, no offence under Section 376 of Indian Penal Code is attracted and though the incident was on 8.3.2005, complaint was filed only on 17.10.2005. Annexure-B affidavit, sworn to by the defacto complainant, was also filed contending that it shows that she has no complaint against the petitioner and in such circumstances, she is not expected to give evidence implicating the CRMC 1134/10 2 petitioner and in such circumstances, to secure justice, the case is to be quashed. 2. Third respondent was subsequently impleaded and learned counsel appearing for the third respondent submitted that matter has been settled. 3. Learned counsel appearing for the petitioner, third respondent and learned Public Prosecutor were heard. 4. Argument of the learned counsel appearing for the petitioner is that there is delay in lodging the FIR and the affidavit filed by the third respondent establishes that if she is to be examined, she will not give any evidence against the petitioner and in such circumstances, no purpose will be served by proceeding with the case and therefore, it is to be quashed. Learned counsel relied on the decision of a learned single Judge of Orissa High court in Kamadev Naik v. State of Orissa (1994 (3) Crimes 248) in support of the case. CRMC 1134/10 3 5. Case was registered recording the first information statement of the prosecutrix, the third respondent. If the averments in the F.I. Statement are to be taken as correct, it cannot be said that ingredients of an offence under Section 376 of Indian Penal Code is not attracted. At this stage, case could be quashed based on the FIR only and if that be so, averments in the F.I. Statement are to be taken as true and correct. In such circumstances, I cannot agree with the submission of the learned counsel appearing for the petitioner that ingredients of an offence under Section 376 or 506(i) of Indian Penal Code is not attracted. 6. Though Annexure-B photocopy of the affidavit of the third respondent, who is now residing at Bangalore with her husband and children, was produced to show that she was in love with the accused and sexual intercourse was with her consent, I cannot agree with the submission that based on that affidavit, FIR is to be quashed. I cannot also agree with the view taken by the CRMC 1134/10 4 learned single Judge of Orissa High Court in Kamadev Naik's case (supra) that if the victim is not expected to give evidence implicating the accused in commission of the offences alleged, prosecution under Section 376 of Indian Penal Code is to be quashed. If such an affidavit or statement is to be taken as the basis for quashing the case, possibility of a threat or coercion, compelling the victim to file an affidavit or statement or agreement, not to give evidence against the accused, cannot be ruled out. It is not in the interest of administration of criminal justice to quash the crime registered for a heinous offence like the offence under Section 376 of Indian Penal Code. It is not an offence purely personal against third respondent, but an offence against the society and hence, based on the settlement, the case cannot be quashed as sought for. The petition is dismissed. 8th December, 2010 (M.Sasidharan Nambiar, Judge) tkv