Kerala High Court
E.F. Jose vs State Of Kerala on 21 July, 2025
2025:KER:53539
Crl.M.C.No.5433/2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
CRL.MC NO. 5433 OF 2025
CRIME NO.1254/2020 OF Irinjalakuda Police Station, Thrissur
SC NO.1204 OF 2024 OF SPECIAL COURT FOR SC/ST ATROCITIES ACT
CASES, THRISSUR
PETITIONER/ACCUSED:
E.F. JOSE, AGED 67 YEARS
S/O. LATE E.G. FRANCIS, ELAVATHINGAL KANJANIKARAN
HOUSE, TANA, IRINJALAKKUDA, THRISSUR, PIN - 680121
BY ADVS.
SRI.C.P.UDAYABHANU
SRI.NAVANEETH.N.NATH
RESPONDENT/STATE & DE FACTO COMPLAINANT:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 XXX
XXXX
SRI.SUDHEER.G, PUBLIC PROSECUTOR
BY ADV SRI.P.R.AJAY
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
15.07.2025, THE COURT ON 21.07.2025 PASSED THE FOLLOWING:
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Crl.M.C.No.5433/2025 2
ORDER
The petitioner is the accused in S.C No.1204/2024 on the files of the Special Court for SC/ST Atrocities Act Cases, Thrissur. The offence alleged against him are under Sections 376(1) I.P.C and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. The prosecution case is that the petitioner, who belonged to the Christian community, committed rape upon the de facto complainant, whom he knew to be belonging to Scheduled Caste community, on 02.08.2020 at about 6:45 p.m. It is stated that the petitioner brought the de facto complainant, a home nurse, to his residence for postpartum care of his daughter, and resorted to the sexual assault by taking her to the rear side of his house at the terrace portion, by saying that some articles are to be taken from there. He is alleged to have caught hold of her and indulged in penetrative sexual assault.
3. The case has been registered by the Inspector of Police, Irinjalakkuda on 12.08.2020 on the basis of the first information statement given by the de facto complainant. After the completion of 2025:KER:53539 Crl.M.C.No.5433/2025 3 the investigation, the Deputy Superintendent of Police, Irinjalakkuda laid the final report before the Special Court.
4. In the present petition, the petitioner would contend that he is totally innocent and that he has been falsely implicated in this case. It is further stated that whatever happened during the stay of the de facto complainant at the house of the petitioner was with her free consent. Another contention raised by the petitioner in this petition is that the de facto complainant had sworn an affidavit expressing her desire to drop all proceedings initiated against the petitioner. For the above reasons, the petitioner seeks to quash the proceedings against him.
5. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala. 6. The prosecution records would reveal that the petitioner has resorted to the treacherous act of penetrative sexual assault upon a lady belonging to the Scheduled Caste community, who was brought to his house as home nurse to his daughter. The incident is said to have happened on the first day when the survivor was taken by the petitioner to his house. According to the statement given by the de facto complainant to the police, the physical and mental trauma 2025:KER:53539 Crl.M.C.No.5433/2025 4 suffered by her as a result of the sexual assault committed by the petitioner, was the reason why she preferred the complaint after ten days from the date of the incident. It is true that the petitioner has produced an affidavit, said to have been sworn by the survivor, stating that the version given by her to the police was modulated by them into an incident of forceful rape and that there were no such instances of sexual assault upon her. There is also a bald statement in the above affidavit that whatever occurred in the house of the petitioner was with her full consent. It is not possible to act upon the above affidavit and to quash the proceedings against the petitioner since it is seen that the statements given by the de facto complainant to the police would clearly bring home a case of vulgar and sordid sexual assault upon a lady belonging to the marginalised sections of the society, who was taken by the petitioner to his house to work as a home nurse to his daughter. True that the statements in the affidavit sworn in English language would give the impression that the investigating agency had manipulated the version of the de facto complainant about the sexual assault perpetrated upon her by the petitioner. But, it is not possible to discern from the above affidavit as to what prompted her to prefer a complaint to the police, if she was having consensual sex with the 2025:KER:53539 Crl.M.C.No.5433/2025 5 petitioner. That being so, it is doubtful whether the de facto complainant had signed the affidavit, after fully understanding the meaning and purport of the averments incorporated thereunder in English language. Even otherwise, in cases like this, it is not possible to invoke the powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to stifle the prosecution case.
7. In the celebrated decision of the Apex Court in Gian Singh v. State of Punjab [(2012) 10 SCC 303], the Hon'ble Supreme Court held in unequivocal terms that there is absolutely no scope for any compromise in serious offences like rape, murder, dacoity etc. The relevant portion of the aforesaid judgment laying down the law in this regard is extracted hereunder:
"xxxx No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement 2025:KER:53539 Crl.M.C.No.5433/2025 6 between the offender and the victim can have no legal sanction at all. xxxxxxx"
8. In Parbatbhai Aahir v. State of Gujarat [(2017) 9 SCC 641], the Apex Court reiterated the law laid down in Gian Singh (supra) and held that heinous and serious offences involving mental depravity or offences such as murder, rape and decoity cannot be appropriately be quashed though the victim or the family of the victim have settled the dispute, and that such offences are not private in nature, but have a serious impact upon society. It is further observed thereunder that the decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
9. In State of M.P v. Madanlal [(2015) 7 SCC 681], the Hon'ble Supreme Court held that in the offence of rape or attempt to rape, the conception of compromise under no circumstances can really be thought of, and those offences are crimes against the body of a woman which is her own temple, and that those are offences which suffocate the breath of life and sully the reputation. It is further observed in the aforesaid decision that the dignity of a woman is part of her non-perishable and immortal self and no one should ever think of painting in clay, and there cannot be a compromise or settlement as 2025:KER:53539 Crl.M.C.No.5433/2025 7 it would be against her honour which matters the most. The relevant paragraph in the aforesaid judgment of the Apex Court is extracted hereunder:
18. The aforesaid view was expressed while dealing with the imposition of sentence. We would like to clearly state that in a case of rape or attempt to rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are the offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the "purest treasure", is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct.
Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error."
10. In Ramji Lal Bairwa v. State of Rajasthan [(2025) 5 SCC 117], the Apex Court has made it clear that heinous and serious offences could not be quashed even though the victim or victim's 2025:KER:53539 Crl.M.C.No.5433/2025 8 family and the offender had settled the dispute. The relevant paragraph of the judgment where the law is laid down in the above regard, is extracted hereunder:
"36. Thus, in unambiguous terms this Court held that before exercising the power under Section 482CrPC the High Court must have due regard to the nature and gravity of the crime besides observing and holding that heinous and serious offences could not be quashed even though a victim or victim's family and the offender had settled the dispute. This Court held that such offences are not private in nature and have a serious impact on the society. Having understood the position of law on the second question that it is the bounden duty of the court concerned to consider whether the compromise is just and fair besides being free from undue pressure we will proceed to consider the matter further."
11. Recently, the Hon'ble Apex Court has held in the landmark judgment of the case In Re: Right to Privacy of Adolescents [2024 SCC Online SC 2055], that when offences of rape and aggravated penetrative sexual assault are committed, by exercising its jurisdiction under Article 226 of the Constitution of India and/or Section 482 of the Cr.PC, the High Court cannot acquit an accused whose guilt has been proved. It is true that the aforesaid dictum applies to a case where the offence alleged was found to have been proved in the trial. But, the dictum in the aforesaid decision, when 2025:KER:53539 Crl.M.C.No.5433/2025 9 taken along with the law laid down by the Apex Court, consistently alerting the High Courts against the exercise of the powers under Section 482 Cr.PC for stifling the prosecution on the ground of minor drawbacks, it has to be taken that quashment cannot be resorted to when the records relied on by the prosecution are prima facie indicative of the commission of offence by the accused.
12. Thus the position of law is now settled that the prosecution of heinous offences like rape and POCSO Act crimes cannot be terminated by this Court in exercise of its powers under Section 482 Cr.P.C/Section 528 of the BNSS on the basis of the compromise which arose out of a situation where the offenders succeeded in winning over the victims or their relatives by inducement or threat.
13. As far as the present case is concerned, the prayer of the petitioner to quash the proceedings against him by acting upon the affidavit sworn by the victim that she has no subsisting grievance against him and nor interested in continuing the prosecution, cannot be entertained since it would be against the settled principles of law in this regard.
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14. In view of the discussions aforesaid, I find no merit in the present petition for quashing the criminal prosecution against the petitioner.
In the result, the petition is hereby dismissed.
(sd/-)
G. GIRISH, JUDGE
jsr