Rejin.E.B @ Rejin Babu vs State Of Kerala
2023 Latest Caselaw 11376 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
   WEDNESDAY, THE 8TH DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945
                       CRL.MC NO. 2387 OF 2022
        CRIME NO.298/2018 OF Anthikad Police Station, Thrissur
    AGAINST THE ORDER/JUDGMENT SC 864/2018 OF DISTRICT COURT &
                       SESSIONS COURT,THRISSUR
PETITIONER/ACCUSED:

            REJIN.E.B @ REJIN BABU, S/O. BABU
            AGED 34 YEARS
            ERASSERY HOUSE, MANGATTUKARA, PADIYAM, KANDASSANKADAVU,
            THRISSUR, PIN - 680613
            BY ADV M.A.ABDUL HAKHIM


RESPONDENT/STATE COMPLAINANT AND DE FACTO COMPLAINANT:

    1       STATE OF KERALA
            HIGH COURT OF KERALA ERNAKULAM. COCHIN, PIN - 682031
    2       XXXXXXXXXX
            XXXXXXXXXX XXXXXXXXXX
            BY ADVS.
            PUBLIC PROSECUTOR
            N.U.HARIKRISHNA
            MITHUN BABY JOHN(K/1270/2012)




            SRI NOUSHAD K.A. (SR PP)


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
08.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 2387 OF 2022                         2



                                      ORDER

Petitioner is the accused in Crime No.298/2018 of

Anthikad Police Station, Thrissur District, alleging commission

of offences under Sections 376(2)(n), 406 and 420 of the

Indian Penal Code. The matter is now pending as

S.C.No.864/2018 before the Additional Assistant Sessions

Court-I, Thrissur.

2. Allegation against the petitioner is that, after

promising to marry the 2 nd respondent/victim/de facto

complainant, in the presence of relatives, the petitioner

sexually harassed the victim on two days in March-2015 and on

the pretext of marriage, obtained a sum of Rs.2,00,000/-

(Rupees Two lakhs only) and ten sovereigns of gold ornaments

after assuring that the same would be returned as and when

demanded, failed to return the same and thereby, he

committed the offences alleged against him.

3. Learned counsel appearing for the petitioner would

submit that the petitioner is absolutely innocent of the

allegations levelled against him. It is submitted that, even

going by the First Information Statement of the the 2 nd

respondent/victim/de facto complainant, the marriage between

the petitioner and the victim was fixed in the presence of their

relatives. It is submitted that, thereafter, owing to difference of

opinion between the petitioner and the victim, the victim

herself had decided to withdraw from the proposal of marriage.

It is submitted that, in the month of March-2018, certain

relatives of the victim had brutally attacked the petitioner,

leading to registration of Crime No.248/2018 of Anthikkad

police station, alleging commission of offences under Sections

143, 147, 148, 341, 323, 324, 326, 427 r/w.149 of the Indian

Penal Code. It is submitted that, nearly a month after the

registration of Crime No.248/2018 of Anthikkad police station

against the close relatives of the victim, a First Information

statement, which led to registration of Crime No.298/2018 of

Anthikkad police station was given against the petitioner,

alleging commission of the offences as above. It submitted that

the entire issues between the petitioner and the accused in

Crime No.248/2018 of Anthikkad police station was settled and

this Court, by order dated 06.06.2023 in Crl.M.C.

No.3304/2023, quashed all further proceedings in Crime

No.248/2018 of Anthikkad police station, which was then

pending as C.C. No.1740/2018 on the file of the Judicial First

Class Magistrate-II, Thrissur. It is submitted that the the 2 nd

respondent/victim/de facto complainant in this case also

executed an affidavit stating that the First Information

statement against the petitioner was given on a mistaken

notion and that she has no objection in the proceedings against

the petitioner in Crime No.298/2018 being quashed.

4. Learned Public Prosecutor and the learned counsel

appearing for the 2nd respondent/victim/de facto complainant

in Crime No.298/2018 would submit that all issues between the

petitioner and the the 2nd respondent/victim/de facto

complainant have been settled and that the 2 nd respondent has

no objection in the proceedings against the petitioner being

quashed.

5. The decisions of the Supreme Court in Gian Singh

V. State of Punjab [(2012) 10 SCC 303] and State of

Madhya Pradesh V. Laxmi Narayan and Others [(2019) 5

SCC 688] are authorities for the proposition that heinous

offences, such as rape, cannot be quashed on the ground of

settlement. Therefore, the fact the issues between the

petitioner and the 2nd respondent/victim/de facto complainant

have been settled cannot compel this Court to quash the

proceedings against the petitioner as one of the offences

alleged against the petitioner is one punishable under Section

376(2)(n) of the Indian Penal Code. However, there are certain

aspects in this case which make it apparent that the

relationship between the petitioner and the the 2 nd

respondent/victim/de facto complainant was consensual. The

victim, in her First Information Statement, has stated that the

marriage between the petitioner and the the 2 nd

respondent/victim/de facto complainant was fixed in the

presence of relatives. The alleged sexual relationships

between the petitioner and the the 2nd respondent/victim/de

facto complainant allegedly took place on two occasion in

March-2015. On account of some difference of opinion, the

relationship between the petitioner and the the 2 nd

respondent/victim/de facto complainant had broken down. The

petitioner was allegedly attacked by certain relatives of the the

2nd respondent/victim/de facto complainant, leading to

registration of Crime No.248/2018 of Anthikkad police station,

as above. In the facts of the present case, though the incident

of rape is alleged to have taken place in the month of March-

2015, the First Information statement, leading to registration

of Crime No.298/2018 of Anthikkad police station was given

more than three years later and only in the month of April-

2018. In almost similar circumstances, the Supreme Court in

Mandar Deepak Pawar V. The State of Maharashtra and

Another [2022 LiveLaw (SC) 649] held as follows:-

''The appellant and respondent No.2 were undisputedly in a consensual relationship from 2009 to 2011 (or 2013 as stated by the respondent No.2). It is the say of the respondent No.2 that the consensual physical relationship was on an assurance of marriage by the appellant. The complaint has been filed only in 2016 after three years, pursuant whereto FIR dated 16.12.2016 was registered under Section 376 and 420, IPC.

On hearing learned counsel for parties, we find ex facie the registration of FIR in the present case is abuse of the criminal process.

The parties chose to have physical relationship without marriage for a considerable period of time. For some reason, the parties fell apart. It can happen both before or after marriage. Thereafter also three years passed when respondent No.2 decided to register a FIR.

The facts are so glaring as set out aforesaid by us that we have no hesitation in quashing the FIR dated 16.12.2016 and bringing the proceedings to a close. Permitting further proceedings under the FIR would amount to harassment to the appellant through the criminal process itself.

We are fortified to adopt this course of action by the judicial view in (2019) 9 SCC 608 titled "Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr." where in the factual scenario where complainant was aware that there existed obstacles in marrying the accused and still continued to engage in sexual relations, the Supreme Court quashed the FIR. A distinction was made between a false promise to marriage which is given on understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled. This was in the context of Section 375 Explanation 2 and Section 90 of the IPC, 1860.

The Criminal appeal is accordingly allowed.

Impugned judgment is set aside and the proceedings in pursuance to FIR dated 16.12.2016 stand quashed, leaving parties to bear their own costs.''

It appears that the present case is almost identical to the

situation considered by the Supreme Court in Mandar Deepak

Pawar (Supra). Therefore, though the proceedings against the

petitioner cannot be quashed on the basis of settlement

between the petitioner and the 2 nd respondent/de facto

complainant/victim, I am of the view that proceedings against

the petitioner can be quashed on merits.

Accordingly, this Crl.M.C. is allowed and all further

proceedings in S.C. No.864/2018 on the file of the Additional

Assistant Sessions Court-I, Thrissur (arising out of Crime

No.298/2018 of Anthikkad Police Station, Thrissur District),

will stand quashed as against the petitioner.

Sd/-

GOPINATH P.

JUDGE ajt

APPENDIX OF CRL.MC 2387/2022

PETITIONER ANNEXURES Annexure2 PHOTOSTAT COPY OF FIRST INFORMATION REPORT DATED 22/03/2018 IN CRIME NO.248/2018 OF ANTHIKKAD POLICE STATION Annexure4 PHOTOSTAT COPY OF THE ORDER OF THE ADDITIONAL ASSISTANT SESSIONS COURT I , THRISSUR DATED 02/11/2021 IN C.M.P.NO.315/2021IN S.C.NO.864/2018 Annexure5 PHOTOSTAT COPY OF THE CERTIFICATE DATED 20/06/2014 ISSUED BY THE CONTROLLER OF EXAMINATIONS, UNIVERSITY OF CALICUT Annexure6 PHOTOSTAT COPY OF THE CERTIFICATE OF DIPLOMA IN FIRE AND SAFETY ENGINEERING DATED 16/07/2009 ISSUED BY INTERNATIONAL INSTITUTE OF TECHNOLOGIES TO THE PETITIONER Annexure7 PHOTOSTAT COPY OF THE CERTIFICATE OF PROFESSIONAL DIPLOMA IN COMPUTERISED INSTRUMENTATION DATED 19/03/2012 ISSUED BY KELTRON TO THE PETITIONER Annexure8 A PHOTOSTAT COPY OF THE CERTIFICATE OF HEALTH AND SAFETY PRACTICAL APPLICATION DATED 07/05/2014 ISSUED BY NATIONAL EXAMINATION BOARD OF OCCUPATIONAL SAFETY AND HEATH, ENGLAND TO THE PETITIONER Annexure9 A PHOTOSTAT COPY OF THE CERTIFICATE DATED 28/08/2013 ISSUED BY CONSOLIDATED CONTRACTORS GROUP S.A.L (OFFSHORE) TO THE PETITIONER