X vs State Of Kerala
2021 Latest Caselaw 21255 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                     THE HONOURABLE MRS. JUSTICE M.R.ANITHA
         FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                            CRL.MC NO. 4514 OF 2021
(SC NO.242/2018 OF FAST TRACK SPECIAL COURT (POCSO) ATTINGAL ARISING
          FROM CRIME NO.1139/2017 OF THE AYIROOR POLICE STATION,
                          THIRUVANANTHAPURAM DISTRICT.
PETITIONER/ACCUSED:

              X
              AGED 23 YEARS
              XX
              BY ADV P.ANOOP (MULAVANA)


RESPONDENTS/STATE, DEFACTO COMPLAINANT:

     1        STATE OF KERALA
              REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
              ERNAKULAM-682 031
     2        X
              VICTIM
     3        XX
              XXX

OTHER PRESENT:

              PP SRI RENJIT GEORGE,SR GP



     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
23.10.2021, THE COURT ON         29.10.2021   PASSED THE FOLLOWING:
 Crl.M.C.4514/21
                                                 2



                                        ORDER

Dated : 29th October, 2021

1. Petitioner is the sole accused in S.C.242/2018 on the file

of Fast Track Special Court (PoCSO) Attingal, which

arose out of Crime No.1139/2017 of Ayiroor police

station. This Crl.M.C has been filed seeking to quash

further proceedings in the above said case.

2. Prosecution case is that petitioner/accused

(hereinafter referred as petitioner), committed

aggravated penetrative sexual assault on the minor

victim girl, who is a relative, on 28.10.2015, in a

rented house of her sister and thereafter, repeated

the same and impregnated her; thereby committed the

offence afore.

3. Annexure-A1 is the copy of final report in Crime

No.1139/2017 of Ayiroor Police Station. The 3rd

respondent is the de facto complainant, the mother of

the victim. She had filed Annexure-A2 affidavit. Crl.M.C.4514/21

Annexure-A3 is the affidavit duly sworn in by the

victim.

4. According to the petitioner, marriage of the

petitioner and 3rd respondent was solemnized as per

the Special Marriage Act on 8.9.2021. Annexure-A4 is

the true copy of the marriage certificate. A girl

child is also born to them on 21.10.2017. Annexure-A5

is the true copy of the birth certificate of the child

born out of their relationship.

5. According to the learned counsel for the petitioner,

petitioner and the victim girl were in immense love

from the period when the victim was 15 years old

onwards. They were also relatives. Now the petitioner

married the victim while she attained majority and a

child is also born to them out of their relation. The

victim girl and her mother sworn in an affidavit

solemnly affirming that they have no surviving

grievance against the petitioner. It is also his

contention that no complaint as such was filed by the

victim and the case was actually happened to be Crl.M.C.4514/21

registered when the girl came for treatment and

delivered the child and the hospital authorities

intimated the matter to the Child Line. In the

statement Annexure-A1 given by the victim also, she

had categorically stated about the love affair with

the petitioner and they lived together in the rented

house of her sister. Their relationship continued and

she came to know about the pregnancy only when she

went to the hospital one day in August 2017. She has

also categorically stated that the petitioner had

sexual contact with her promising to marry her and on

21.10.2017 she delivered a girl child. According to

the learned counsel, now the petitioner is living

happily with the victim girl along with their daughter

aged 4 years. So in the said circumstances, the

criminal proceedings against the petitioner is a

harassment to the de facto complainant her child and

also the petitioner. In such circumstances, according

to the learned counsel, the inherent powers vested

with this Court can be exercised to quash the Crl.M.C.4514/21

proceedings to secure the ends of justice.

6. The learned Public Prosecutor produced the copy of the

report of the Inspector, SHO concerned and also the

copy of the signed statement of the victim in which

also she categorically stated that she is living

happily with the child along with the petitioner and

she is not interested in continuing with the

proceedings against the petitioner.

7. So in the said circumstances whether the criminal

prosecutions against the petitioner is liable to be

set aside or not, is the point for determination.

8. The learned counsel for the petitioner relied upon

Gian Singh v. State of Punjab and Another (2012 (1)

SCC 3030 = 2012 KHC 4530), Freddy @ Antony Francis and

Another v. State of Kerala and Another (2017 KHC 344 =

2018 (1) KLD 558), Mohammed Rasal v. State of Kerala

and Another (2019 (5) KHC 904 = 2020 (1) KLT 126) and

Unni.A. v. State of Kerala and Another

(Crl.M.C.2459/2018 dated 8.9.2020). Paragraph No.55 in

Gian Singh is relevant in this context to be quoted Crl.M.C.4514/21

which reads thus :-

"B.S. Joshi1, Nikhil Merchant2, Manoj Sharma3 and Shiji alias Pappu33 do illustrate the principle that High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S. Joshi1, Nikhil Merchant2, Manoj Sharma3 and Shiji alias Pappu33, this Court has compounded the non-compoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although ultimate consequence may be same viz., acquittal of the accused or dismissal of indictment.

9. In the above decision, the Apex Court unequivocally

stated that inherent power is of wide plenitude with no

statutory limitation but it has to be exercised in accord Crl.M.C.4514/21

with the guideline engrafted in such power viz; (i) to

secure the ends of justice or (ii) to prevent abuse of

the process of any Court.

10. Freddy, referred above, was a case registered

against the accused under Section 376 IPC and Section

3(1)(XII) of SC/ST Act and during the pendency of the

criminal proceedings, accused married the victim and

they filed a joint petition to quash the proceedings.

So this Court considered the question whether power

under Section 482 Cr.P.C can be exercised or not.

Paragraph 9 of the said judgment is relevant which

reads thus :

"It is borne out from the statement recorded by the Sub Inspector of Police of the 2nd petitioner that the parties were in love and the Crime was registered when the 2nd petitioner was under the impression that the 1st petitioner would resile from his earlier promise. However, in view of the subsequent turn of events, she has realized that her apprehension was baseless. The parties are living together as husband and wife. There is Crl.M.C.4514/21

no case for anyone that the dignity of the 2 nd petitioner was violated by a wanton act of the 1st petitioner. This is not one of those cases wherein the allegations reek of extreme deparavity, 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. In the peculiar facts of the instant case, grave hardship and inconvenience will be caused to the 2nd petitioner, if the prosecution is permitted to continue. When the 2nd petitioner 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 2nd petitioner 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 S.482 of the Code to quash the proceedings.

11. The above decision would go to show that the

offence under Section SC/ST (PoA) Act has also been

incorporated along with Section 376 IPC. The

allegation is sexual assault upon a member of Crl.M.C.4514/21

scheduled caste/scheduled tribe by a person who is not

a member of scheduled cast or scheduled tribe. Even in

such situation, this Court was inclined to quash the

proceedings against the petitioner in view of the fact

that parties were living together as husband and wife

and further that grave hardship and inconvenience will

be caused to the de facto complainant if the

prosecution is permitted to continue. She has also

asserted that she is not desirous of prosecuting her

husband.

12. Mohammed Rasal's case was also one charged under

Section 376 read with Section 5(j)(ii) of the PoCSO

Act, 2012 and the question arose whether the

proceedings against the petitioner, accused in that

case, can be quashed under Section 482, in view of the

fact that the couple have a child and is leading a

peaceful married life. The Court took into account the

fact that the families on both sides arranged the

marriage when the accused was 25 years old and the

victim, the 2nd respondent, was 17 years old. It is Crl.M.C.4514/21

true that, that was also a case they entered into a

sexual relationship after the solemnization of

marriage. The Court also has taken note of the fact

that at the time when the alleged offence was

committed before 11.10.2017 before the pronouncement

of the dictum in Independent Thought v. Union of India

& Anr (2017 (1) SCC 800 = AIR 2017 SC 4904) wherein

the Apex Court held that in view of the provisions

contained in the PoCSO Act and other provisions in

Section 375 IPC, age limit should be 18 years

envisaged in Section 375 as per clause sixthly

(wherein the age is mentioned as 16 years). It is true

that in this case, even before 1½ years on 24.7.2017

she had physical contact with the petitioner. That is

a period prior to the pronouncement of that judgment.

13. However it is the admitted case of the victim

and the petitioner that they were in deep love and he

has physical contact with her promissing to marry her

and that has been fulfilled when actually their

marriage was conducted and marriage certificate is Crl.M.C.4514/21

also produced before Court. In Denu P.Thampi v. Ms.X

and Another (2019 (3) KHC 199) this Court has

categorically held that when accused promised to marry

the victim and had sexual relationship with the victim

and thereafter he is charged with the offence of rape

and when subsequently parties got married, the

allegation of false promise vanishes and in such

circumstances, this Court exercised the discretion

vested under Section 482 Cr.P.C and quashed the

criminal proceedings.

14. Unni.A. v. State of Kerala also is a case

charged against the accused under Sections 3, 4 and 17

of the PoCSO Act and Sections 9 and 10 of th

Prohibition of Child Marriage Act, 2006. In that case

also, there was no formal complaint and the hospital

authorities after recording her age finding that she

is a minor, informed the police authorities and

subsequently the case was registered. So taking into

account the fact that the victim has not approached

the police authorities and further that her marriage Crl.M.C.4514/21

was arranged on an understanding between both the

families and the accused and his family members were

never aware that the victim was a minor at the time of

marriage proposal etc., the Court based on the dictum

laid down in Mohammed Rasal's case, ultimately quashed

the proceedings against the accused persons.

15. The learned counsel for the petitioner further

brought to my attention the order in Special Leave to

Appeal (Crl) No.2782/2021 dated 16.3.2021 which arose

out of Crl.M.P.3209/2021 passed by the High Court of

Judicature at Madras. According to the learned

counsel, the question arise in that case was whether

an adolescent boy who enters into a relationship with

a girl who is less than 18 years of age can be

punished for the offence of sexual assault under the

PoCSO Act. The petition was preferred against an order

of Madras High Court in Maruthupandi v. State

Represented by the Inspector of Police in

Crl.M.P.3209/2021 holding that even if a minor girl

falls in love and develops a sexual relationship with Crl.M.C.4514/21

her partner, the provisions of PoCSO Act will be

attracted against the latter. But the Apex Court

protected the petitioner from any coercive action, in

the meantime, by the order referred above in the SLP.

16. In the case in hand, it has come out that while

the victim was a minor, the petitioner had developed

intimacy with her and subsequently had sexual

intercourse and impregnated her. On she attaining

majority a legal marriage was also conducted.

Presently the petitioner is living with his wife, the

2nd respondent and a four year old daughter. So if the

criminal proceedings against the petitioner in the

above crimes proceeded further, it would affect their

peaceful married life and it will put the petitioner,

the de facto complainant and their daughter in grate

hardship, miseries and inconveniences since there are

no surviving grievance to the de facto complainant and

her family members against the petitioner. There is no

chance for ending the case in a conviction also. So

the entire process of trial will be a waste of Crl.M.C.4514/21

valuable time of the Court without serving any

purpose. So for doing complete justice to the parties

and to prevent abuse of process of C6ourt and to

secure the ends of justice, I find it just and proper

to quash further proceedings against the petitioner in

S.C.No.242/2018 of Fast Track Special Court (PoCSO),

Attingal, arising from Crime No.1139/2017 of Ayiroor

Police Station, Thiruvananthapuram. Ordered

accordingly.

In the result Crl.M.C. stands allowed.

Sd/-

M.R.Anitha, Judge

Mrcs/28.10.

Crl.M.C.4514/21

APPENDIX OF CRL.MC 4514/2021

PETITIONER ANNEXURE Annexure A1 TRUE COPY OF THE FINAL REPORT IN SC NO 242/2018 OF FAST TRACK SPECIAL COURT (POCSO) ATTINGAL.

Annexure A2 TRUE COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT Annexure A3 TRUE COPY OF THE AFFIDAVIT FILED BY THE 3RD RESPONDENT Annexure A4 TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 8.9.2021 Annexure A5 TRUE COPY OF THE BIRTH CERTIFICATE NO 182/2017 DATED 23.11.2017 ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHS Annexure A6 TRUE COPY OF THE ORDER DATED 16.7.2021 IN SPECIAL LEAVE TO APPEAL (CRL) NO (S) 2782/2021 OF THE APEX COURT