IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
ANNEXURE 1: TRUE COPY OF THE FIR OF
VARKALA POLICE STATION.
ANNEXURE 2: TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED
FROM GRAMA PANCHAYATH
ANNEXURE 3: TRUE COPY OF THE ORDER IN BAIL APPLICATION
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.S. TO JUDGE
bp
RAJA VIJAYARAGHAVAN.V, J
----------------------------------------
O R D E R
1.This petition is filed under section 482 of the Code of
Criminal Procedure (hereinafter referred to as 'the Code'
for brevity). The petitioner is the accused in a crime registered at Varkala Police Station.
2.The sum and substance of the allegations in the FIR,
which is produced as Annexure-1 are as follows:-
The petitioner and the 3rd respondent were school mates
and were deeply in love. While so the 3rd respondent went
missing from the house of her friend, one Asha. The
mother of the 3rd respondent approached the Petta Police
Station and filed a complaint based on which Crime No
1272 of 2014 was registered under section 57 of the
Kerala Police Act. The 3rd respondent was traced out. She
was produced before the Magistrate who permitted her to
go with her mother. Investigation revealed that they had
engaged in sexual intercourse and hence Crime No 2084
of 2014 was registered under section 376 of the IPC and
under section 3 (a) and 4 of the Protection of Children
from Sexual Offences Act, 2012. The petitioner was aged
20 at the time of the incident and the 3rd respondent was
17 years of age. In the course of the proceedings, when
both the parties attained the age of consent, their
marriage was solemnized on 13.11.2015. The said marriage
has also been registered. The petitioner as well as the 3rd
respondent are living under the same roof as husband and
wife with the blessings and support of their families.
3.It is in this backdrop that this petition is filed to quash the
proceedings upon the contention that the continuance of
proceedings is an abuse of process of law.
4.Heard the learned counsel appearing for the petitioner,
the respondent 3 and also the learned public prosecutor.
5.The counsel appearing for the petitioner asserted that the
petitioner and the 3rd respondent were school mates and
they were in love. The mother of the 3rd respondent
objected to this relationship. The 3rd respondent stealthily
went to her friends house and from there eloped with the
petitioner. According to the learned Counsel, the
allegation of Rape and is clearly unfounded. They have
married on 13.11.2015 and are endeavoring to carry on
with their life . According to the learned Counsel, the
continuance of the proceedings is an abuse of process.
6.The respondent No 3 has appeared through counsel and
have an affidavits. In the affidavit she has stated that she
has married the petitioner and they are living as husband
and wife in the home of the petitioner. According to the
learned counsel, this is not a case wherein the petitioner
had violated the 3rd respondent. On the other hand they
were in love and in view of the solemnization of marriage ,
it is only just and proper that the criminal proceedings
against her husband is terminated.
7.The learned Public Prosecutor on instructions submits that
the investigating officer has reported that the parties have
married and are living together. The authenticity of
Annexure 2 certificate was ascertained and it is submitted
that the same is genuine.
8.The legal position with regard to quashing of proceedings
on the basis of compromise between the parties is by now
well settled. It has been held that the power of the High
Court in quashing a criminal proceeding or FIR or
complaint in exercise of its inherent jurisdiction is distinct
and different from the power given to a criminal Court for
compounding the offences under S.320 of the Code. In
what cases power to quash the criminal proceeding or
complaint or FIR may be exercised where the offender and
victim have settled their dispute would depend on the
facts and circumstances of each case and no category can
be prescribed. However, before exercise of such power,
the Court will have to have due regard to the nature and
gravity of the crime. It is also settled that heinous and
serious offences of mental depravity or offences like
murder, rape, dacoity, etc., cannot quashed even though
the victim or victim's family and the offender have settled
the dispute. Such offenses are not private in nature and
have serious impact on society. The directions of the
Apex Court in Gian singh v. State of Punjab [(2012) 10
SCC 303] and in Narinder singh v. State of Punjab
[(2014) 6 SCC 466 ] are the guiding lights.
9.In so far as the offence of rape is concerned, there cannot
be any doubt that the same cannot be settled on the
strength of a compromise arrived at between the victim
and the accused. The Apex Court in State of M.P. V
Madan Lal (2015 (7) SCC 681), relying on the decision in
Shimbhu and Another v. State of Haryana (2014 (13)
SCC 318) has clearly reminded the Courts that Rape is a
non-compoundable offence and it is an offence against the
society and is not a matter to be left for the parties to
compromise and settle. This was because of the fact that
the Court cannot always be assured that the consent given
by the victim in compromising the case is a genuine
consent. There is every chance that she might have been
pressurised by the convicts or the trauma undergone by
her all the years might have compelled her to opt for a
compromise. In such cases the accused may use all his
influence to pressurise the victim for a compromise. It
was taking note of this aspect that it was held that it
would not be safe in considering the compromise arrived
at between the parties in rape cases. In Madan Lal
(supra) the Apex Court was hearing an appeal filed by the
State against the Judgement of the High Court by which
the conviction arrived at by the Trial Court was set aside
on the basis of a compromise arrived at between the
victim and the accused.
10.However the facts in the instant case is entirely different.
The victim was admittedly in love with the petitioner and
she had eloped to join the petitioner. The 3rd respondent
has married the petitioner and they are living happily as
husband and wife. There is no case for anyone that the
dignity of the 3rd respondent was violated by a wanton act
of the petitioner. On the other hand what is revealed is
only the elopment of a girl with her lover against the
wishes of her family members. This is not one of those
cases wherein the allegations reek of extreme depravity,
perversity or cruelty. It cannot be said that the offence in
the instant case would fall in the category of offences that
have a serious impact on society. The facts of the instant
case when looked at dispassionately would reveal a long
term love affair between two young people which
weathered all storms and ended up in the altar of
marriage. In the peculiar facts of the instant case, grave
hardship and inconvenience will be caused to the 3rd
respondent if the prosecution is permitted to continue.
When the respondent No 3 has asserted that she is not
desirous of prosecuting her husband any further,the
prospects of an ultimate conviction is remote and bleak.
Further more, the 3rd respondent can continue with her
life with dignity and respect . Having considered all the
relevant circumstances, I am of the considered view that
this is a fit case in which this Court will be well justified in
invoking its extra ordinary powers under Section 482 of
the Code to quash the proceedings.
In the result this petition will stand allowed. Annexure-1
FIR of Varkala Police Station and all proceedings pursuant thereto against the
petitioner are quashed.
Sd/-
RAJA VIJAYARAGHAVAN.V.
JUDGE
vps
Note: Details regarding the identity of the parties in this case have been deleted from the judgment to protect their privacy.
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
ANNEXURE 1: TRUE COPY OF THE FIR OF
VARKALA POLICE STATION.
ANNEXURE 2: TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED
FROM GRAMA PANCHAYATH
ANNEXURE 3: TRUE COPY OF THE ORDER IN BAIL APPLICATION
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.S. TO JUDGE
bp
RAJA VIJAYARAGHAVAN.V, J
----------------------------------------
O R D E R
1.This petition is filed under section 482 of the Code of
Criminal Procedure (hereinafter referred to as 'the Code'
for brevity). The petitioner is the accused in a crime registered at Varkala Police Station.
2.The sum and substance of the allegations in the FIR,
which is produced as Annexure-1 are as follows:-
The petitioner and the 3rd respondent were school mates
and were deeply in love. While so the 3rd respondent went
missing from the house of her friend, one Asha. The
mother of the 3rd respondent approached the Petta Police
Station and filed a complaint based on which Crime No
1272 of 2014 was registered under section 57 of the
Kerala Police Act. The 3rd respondent was traced out. She
was produced before the Magistrate who permitted her to
go with her mother. Investigation revealed that they had
engaged in sexual intercourse and hence Crime No 2084
of 2014 was registered under section 376 of the IPC and
under section 3 (a) and 4 of the Protection of Children
from Sexual Offences Act, 2012. The petitioner was aged
20 at the time of the incident and the 3rd respondent was
17 years of age. In the course of the proceedings, when
both the parties attained the age of consent, their
marriage was solemnized on 13.11.2015. The said marriage
has also been registered. The petitioner as well as the 3rd
respondent are living under the same roof as husband and
wife with the blessings and support of their families.
3.It is in this backdrop that this petition is filed to quash the
proceedings upon the contention that the continuance of
proceedings is an abuse of process of law.
4.Heard the learned counsel appearing for the petitioner,
the respondent 3 and also the learned public prosecutor.
5.The counsel appearing for the petitioner asserted that the
petitioner and the 3rd respondent were school mates and
they were in love. The mother of the 3rd respondent
objected to this relationship. The 3rd respondent stealthily
went to her friends house and from there eloped with the
petitioner. According to the learned Counsel, the
allegation of Rape and is clearly unfounded. They have
married on 13.11.2015 and are endeavoring to carry on
with their life . According to the learned Counsel, the
continuance of the proceedings is an abuse of process.
6.The respondent No 3 has appeared through counsel and
have an affidavits. In the affidavit she has stated that she
has married the petitioner and they are living as husband
and wife in the home of the petitioner. According to the
learned counsel, this is not a case wherein the petitioner
had violated the 3rd respondent. On the other hand they
were in love and in view of the solemnization of marriage ,
it is only just and proper that the criminal proceedings
against her husband is terminated.
7.The learned Public Prosecutor on instructions submits that
the investigating officer has reported that the parties have
married and are living together. The authenticity of
Annexure 2 certificate was ascertained and it is submitted
that the same is genuine.
8.The legal position with regard to quashing of proceedings
on the basis of compromise between the parties is by now
well settled. It has been held that the power of the High
Court in quashing a criminal proceeding or FIR or
complaint in exercise of its inherent jurisdiction is distinct
and different from the power given to a criminal Court for
compounding the offences under S.320 of the Code. In
what cases power to quash the criminal proceeding or
complaint or FIR may be exercised where the offender and
victim have settled their dispute would depend on the
facts and circumstances of each case and no category can
be prescribed. However, before exercise of such power,
the Court will have to have due regard to the nature and
gravity of the crime. It is also settled that heinous and
serious offences of mental depravity or offences like
murder, rape, dacoity, etc., cannot quashed even though
the victim or victim's family and the offender have settled
the dispute. Such offenses are not private in nature and
have serious impact on society. The directions of the
Apex Court in Gian singh v. State of Punjab [(2012) 10
SCC 303] and in Narinder singh v. State of Punjab
[(2014) 6 SCC 466 ] are the guiding lights.
9.In so far as the offence of rape is concerned, there cannot
be any doubt that the same cannot be settled on the
strength of a compromise arrived at between the victim
and the accused. The Apex Court in State of M.P. V
Madan Lal (2015 (7) SCC 681), relying on the decision in
Shimbhu and Another v. State of Haryana (2014 (13)
SCC 318) has clearly reminded the Courts that Rape is a
non-compoundable offence and it is an offence against the
society and is not a matter to be left for the parties to
compromise and settle. This was because of the fact that
the Court cannot always be assured that the consent given
by the victim in compromising the case is a genuine
consent. There is every chance that she might have been
pressurised by the convicts or the trauma undergone by
her all the years might have compelled her to opt for a
compromise. In such cases the accused may use all his
influence to pressurise the victim for a compromise. It
was taking note of this aspect that it was held that it
would not be safe in considering the compromise arrived
at between the parties in rape cases. In Madan Lal
(supra) the Apex Court was hearing an appeal filed by the
State against the Judgement of the High Court by which
the conviction arrived at by the Trial Court was set aside
on the basis of a compromise arrived at between the
victim and the accused.
10.However the facts in the instant case is entirely different.
The victim was admittedly in love with the petitioner and
she had eloped to join the petitioner. The 3rd respondent
has married the petitioner and they are living happily as
husband and wife. There is no case for anyone that the
dignity of the 3rd respondent was violated by a wanton act
of the petitioner. On the other hand what is revealed is
only the elopment of a girl with her lover against the
wishes of her family members. This is not one of those
cases wherein the allegations reek of extreme depravity,
perversity or cruelty. It cannot be said that the offence in
the instant case would fall in the category of offences that
have a serious impact on society. The facts of the instant
case when looked at dispassionately would reveal a long
term love affair between two young people which
weathered all storms and ended up in the altar of
marriage. In the peculiar facts of the instant case, grave
hardship and inconvenience will be caused to the 3rd
respondent if the prosecution is permitted to continue.
When the respondent No 3 has asserted that she is not
desirous of prosecuting her husband any further,the
prospects of an ultimate conviction is remote and bleak.
Further more, the 3rd respondent can continue with her
life with dignity and respect . Having considered all the
relevant circumstances, I am of the considered view that
this is a fit case in which this Court will be well justified in
invoking its extra ordinary powers under Section 482 of
the Code to quash the proceedings.
In the result this petition will stand allowed. Annexure-1
FIR of Varkala Police Station and all proceedings pursuant thereto against the
petitioner are quashed.
Sd/-
RAJA VIJAYARAGHAVAN.V.
JUDGE
vps
Note: Details regarding the identity of the parties in this case have been deleted from the judgment to protect their privacy.
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