Xxxxxx vs State Of Kerala
2023 Latest Caselaw 12428 Ker

Kerala High Court

Xxxxxx vs State Of Kerala on 22 November, 2023

Author: P Gopinath

Bench: P Gopinath

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE GOPINATH P.
  WEDNESDAY, THE 22ND DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945
                        CRL.MC NO. 203 OF 2023
    CRIME NO.2534/2018 OF ALUVA EAST POLICE STATION, ERNAKULAM

     S.C.NO.1135/2022 ON THE FILE OF THE ADDITIONAL DISTRICT AND
                SESSIONS COURT (POCSO ACT), ERNAKULAM
PETITIONER/ACCUSED:

          XXXXXXXXXX
          XXXXXXXXXX XXXXXXXXXX

          BY ADV PRAMOJ ABRAHAM


RESPONDENTS/STATE & DEFACTO COMPLAINANT:

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

    2     XXXXXXXXXX
          XXXXXXXXXX XXXXXXXXXX

          BY ADVS.
                      VIPIN NARAYAN (SR PP)
                      K.A.ANISH



     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
22.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C. NO.203 OF 2023                  2


                                ORDER

Petitioner is the accused in Crime No.2534/2018 of

Aluva East Police Station, Ernakulam district, alleging

commission of offences under Sections 376(1), 376(2)(n) of

the Indian Penal Code. The matter is now pending as

S.C.No.1135/2022 on the file of the Additional District and

Sessions Court (POCSO Act), Ernakulam.

2. Learned counsel for the petitioner would submit

that the petitioner and the alleged victim were in a

relationship. It is submitted that the alleged victim is a

B.Tech graduate in civil engineering and is working as a

Civil Engineer in a construction company. It is submitted

that going by the affidavit dated 16-10-2023 executed by the

alleged victim, she was in a relationship with the

petitioner/accused at a time when he was studying at the

St.Mary's College, Allapra. It is submitted that going by the

affidavit, the petitioner and the alleged victim were in love

with each other and they had entered into sexual

relationships on two occasions with the full consent of the

alleged victim and there was no element of force and

therefore the offence of rape punishable under Section 376

of IPC is not attracted. It is submitted that the petitioner

and the victim had intended to get married to each other and

owing to the fact that they belong to two different religions,

there were objections from the family members of the

petitioner and the victim, as a result of which they have

decided to part ways. The learned counsel also places

reliance on the judgments of the Supreme Court in

Dhruvaram Murlidhar Sonar (Dr.) v. State of

Maharashtra and Others; 2019 (1) KHC 403 (SC) and

Pramod Suryabhan Pawar v. State of Maharashtra and

Another; AIR 2019 Supreme Court 4010: AIROnline

2019 SC 904, to contend that the proceedings against the

petitioner can be quashed as it is clear from the affidavit

filed by the defacto complainant/victim that the relationship

between the petitioner and the victim was only consensual

and there was no element of rape.

3. Learned Senior Public Prosecutor submits that a

statement has been recorded from the victim and she has

stated that she is not interested in continuing with the

prosecution against the petitioner.

4. Learned counsel for the 2nd respondent/victim/

defacto complainant would confirm that the 2nd

respondent/victim/defacto complainant stands by the

contents of the affidavit dated 16-10-2023.

5. Having heard the learned counsel for the

petitioner, learned Senior Public Prosecutor and the learned

counsel appearing for the 2nd respondent/victim/defacto

complainant, I am of the view that the proceedings against

the petitioner can be terminated in exercise of jurisdiction

vested in this Court under Section 482 of Code of Criminal

Procedure. While it is clear from the judgments of the

Supreme Court in Gian Singh v. State of Punjab and

Another; (2012) 10 SCC 303, and State of Madhya

Pradesh v. Laxmi Narayan and Others; (2019) 5 SCC

688, that heinous offences such as rape cannot be quashed

on the ground of settlement, when the materials produced

before the Court indicate that the relationship between the

petitioner and the alleged victim was purely consensual, this

Court can exercise jurisdiction under Section 482 of Cr.P.C

to terminate the proceedings on the ground that the offence

is not made out. In the facts of this case, the continuance of

proceedings will not serve public interest and the chances of

successful prosecution are also remote.

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

proceedings in S.C.No.1135/2022 on the file of the

Additional District and Sessions Court (POCSO Act),

Ernakulam (arising out of Crime No.2534/2018 of Aluva East

Police Station, Ernakulam district), will stand quashed as

against the petitioner.

Sd/-

GOPINATH P. JUDGE ats