Fredy James vs State Of Kerala
2021 Latest Caselaw 20801 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                       CRL.MC NO. 5751 OF 2020
     CRIME NO.2476/2020 OF ERAVIPURAM POLICE STATION, Kollam
      AGAINST THE ORDER/JUDGMENT IN CP 83/2020 OF JUDICIAL
            MAGISTRATE OF FIRST CLASS -II, KOLLAM, KOLLAM
PETITIONER/ACCUSED:

               FREDY JAMES
               AGED 22 YEARS
               S/O. JAMES, OF PULIMOOTTIL VEEDU,
               CHERUSSERRY BHAGHAM, THATTASSERRY,
               CHAVARA POST, KOLLAM DISTRICT 691 583.

               BY ADV R.KISHORE


RESPONDENTS/STATE/DEFACTO COMPLAINANT:

       1       STATE OF KERALA
               REPRESENTED BY PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA, ERNAKULAM 682 031.

       2       STATION HUSE OFFICER
               ERAVIPURAM POLICE STATION,
               KOLLAM DISTRICT 691 011.

       3       X
               (DEFACTO COMPLAINANT.)

               BY ADV.SMT.C.SEENA, PUBLIC PROSECUTOR


           THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON    06.10.2021,     THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
 CRL.M.C.NO.5751 OF 2020
                                -2-



                              ORDER

Petitioner is the sole accused in C.P.No.83/2020 on the files

of the Judicial First Class Magistrate Court-II, Kollam, which arose

from Crime No.2476/202 of Eravipuram police station registered

under Sections 366, 450 and 376(2)(n) IPC. The third respondent

is the defacto complainant.

2. It is alleged by the prosecution that the accused with

the intention of sexual intercourse with the third respondent,

started love affair with her in December 2019 and thereafter on

30.05.2020 and on two days in the month of June, 2020 and on

11.09.2020, he kidnapped her from Polayathodu to his residence

at Chavara and committed rape upon her and on two days in the

month of August, 2020, the accused had trespassed into the house

of the 3rd respondent/defacto complainant and committed forceful

sexual intercourse, promising to marry her and thereby the

accused alleged to have committed the offences aforementioned.

3. According to the learned counsel for the petitioner, the

petitioner is a B.Tech graduate and at the alleged time of

occurrence he was a student. Now the petitioner married the

third respondent/defacto complainant and they are living together CRL.M.C.NO.5751 OF 2020

as husband and wife. Annexure A1 is the copy of the FIR and

Annexure A2 is the copy of the final report in the above crime.

The learned counsel for the petitioner submitted that the matter

has been settled with the defacto complainant and Annexure A5 is

the affidavit sworn in by the defacto complainant.

4. The learned counsel produced copy of the judgment in

Crl.M.C.No.5276/2018 dated 27.09.2018 which would show that

this Court actually refused to quash the proceedings on the ground

of settlement between the parties under Section 482 Cr.P.C. taking

into account the fact that the offence alleged is punishable under

Section 376 IPC. The matter was taken up before the Apex Court

and the learned counsel brought to my notice the order of Apex

court in Crl.A.No.1740/2019 dated 22.11.2019, wherein the Apex

court permitted to quash the criminal proceedings pending against

the petitioner in that case to do the complete justice to the parties.

5. In Denu P.Thampi v. Ms.X and Another (2019(2)

KLT 996 : 2019(3) KHC 199) this Court in an identical situation

held that when the victim gave consent for sexual intercourse on

the promise made by the accused that he would marry her and

when that promise was not fraudulent and the accused married the

victim within a short period after the alleged incident, it cannot be CRL.M.C.NO.5751 OF 2020

said that accused committed rape upon her. It is also held that in

such cases, prosecution of accused for committing an offence of

rape would be an abuse of process of court and in such cases court

would be justified in quashing the proceedings under Section 482

of the Code of Criminal Procedure, 1973. In this case also, the

defacto complainant filed complaint alleging that accused

committed rape promising to marry her.

6. The learned Public Prosecutor brought to my attention

that the circumstances in which the charge happened to be filed

against the petitioner. However, now the circumstances has been

changed and they are living together as husband and wife after

their marriage under the Special Marriage Act. In Annexure A5

affidavit, the defacto complainant categorically stated that the

marriage between the petitioner and the defacto complainant was

solemnised on 03.11.2020 and thereafter, they are living together

in the matrimonial home as husband and wife.

7. Annexure A3 is the copy of the marriage certificate

between the petitioner and the defacto complainant. The entire

disputes between the petitioner and the defacto complainant has

been settled and she has no further grievance against the

petitioner and has no objection in allowing the relief sought for in CRL.M.C.NO.5751 OF 2020

this Crl.M.C. It is also averred that the continuation of the

proceedings would affect the harmonious life of the petitioner and

also the career of the petitioner. They are living together as

husband and wife after conducting a lawful marriage. So in order

to do complete justice to the parties, I am permitting to quash the

proceedings against the petitioner/accused in C.P.No.83 of 2020.

In the result, this Crl.M.C. stands allowed and all further

proceedings against the petitioner in C.P.83 of 2020 on the files of

JFCM-II Kollam is hereby quashed.

Sd/-

M.R.ANITHA JUDGE nkr CRL.M.C.NO.5751 OF 2020

APPENDIX OF CRL.MC 5751/2020

PETITIONER ANNEXURE

ANNEXURE A1 THE CERTIFIED COPY OF THE FIR DATED 12/09/2020 IN CRIME NO. 2476/2020 OF ERAVIPURAM POLICE STATION SUBMITTED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT II KOLLAM.

ANNEXURE A2 THE CERTIFIED COPY OF FINAL REPROT DATED 11/11/2020 IN CR1ME NO. 2476/2020 OF ERAVIPURAM POLICE STATION, SUBMITTED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, KOLLAM.

ANNEXURE A3 TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 03/11/2020 ISSUED FROM OFFICE OF MARRIAGE OFFICER, CHAVARA.

ANNEXURE A4           CERTIFIED COPY OF ORDER DATED
                      03/11/2020 PASSED BY THIS HONOURABLE
                      COURT IN CRL.M.C. 4609/2020.

ANNEXURE A5           THE AFFIDAVIT DATED 13/12/2020 SWORN BY
                      THE 3RD RESPONDENT.