Kerala High Court
Xxxxxx vs State Of Kerala on 16 October, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
CRL.MC NO. 3141 OF 2022
PETITIONER/ACCUSED:
XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADVS.
SAIJO HASSAN
BENOJ C AUGUSTIN
RAFEEK. V.K.
U.M.HASSAN
K.N.MUHAMMED THANVEER
BINCY JOB
AATHIRA SUNNY
N.KRISHNA OZHAKKANAT
LAKSHMINARAYAN.R
RESPONDENT/STATE/ DE FACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADV PUBLIC PROSECUTOR
SRI VIPIN NARAYAN (SR PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
16.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 3141 OF 2022 2
ORDER
Petitioner is the accused in Crime No.188 of 2020 of Agali
Police Station, Palakkad District, alleging commission of
offence under Section 376(n) of the Indian Penal Code and
Sections 4(1) r/w. 3(a), 6(1) r/w 5(j)(ii), 5(l) and 5(n) of the
Protection of Children from Sexual Offences Act . The matter is
now pending as S.C. No.705/2020 on the file of the Fast Track
Special Court for POCSO Act, Pattamby , Palakkad district.
2. Allegation against the petitioner is that the
petitioner raped the 2nd respondent/victim, several times in
between March 2019 and March 2020, knowing that she is
minor and thereby, he committed the offences alleged against
him.
3. Learned counsel appearing for the petitioner
submitted that the petitioner and the victim were in a
relationship and she was residing along with the petitioner at
his home. It is submitted that, according to tribal customs, a
man and woman is considered married by default after physical
relations and there need not be any other ceremony or rituals
for marriage. It is submitted that the petitioner and the victim
are now living together as husband and wife with their child
and therefore, the continuance of proceedings will not be in
the interest of the victim. He places reliance on Annexure 3
affidavit executed by the 2nd respondent . It is submitted that,
in such circumstances, this Court has held in Vishnu v. State
of Kerala [2023 (4) KHC 1], that proceedings can be
quashed under Section 482 Cr.P.C.
4. Heard the learned Public Prosecutor also. Learned
Public Prosecutor would confirm that the victim is now living
with the petitioner as his wife along with their child.
5. Having heard the learned counsel appearing for the
petitioner and the learned Public Prosecutor, I am of the view
that, in the facts and circumstances of the case, the
proceedings against the petitioner can be quashed in exercise
of the jurisdiction vested in this Court under Section 482
Cr.P.C. No public purpose will be served by continuing with
the the proceedings against the petitioner. In Vishnu (Supra),
it was held as follows:-
13. The Apex Court in Saju P.R. v. State of Kerala
(Criminal Appeal No. 1740 of 2019, decided on 22.11.2019),
quashed a 'rape case' on the ground of settlement between
the accused and the victim for 'doing complete justice to the
parties concerned'. In Anand D.V. v. State and Another
(Criminal Appeal Nos. 394-395 of 2021, decided on
12.04.2021) , the Apex Court allowed the compromise and
quashed the proceedings for rape on the ground that the
accused married the victim. The crime therein was
registered against the accused on the complaint of the
victim for offences under sections 376 and 380 IPC, alleging
that the accused, by giving a false promise of marriage, had
sexual intercourse with her, but the promise was not
honoured. However, after the registration of the FIR, both
got married, and they approached the High Court of Delhi,
seeking to quash the proceedings invoking section 482 of
Cr.P.C read with Article 226 of the Constitution of India.
The High Court dismissed their plea, and therefore, both
preferred separate appeals at the Apex Court. The Apex
Court allowed the appeals and quashed the proceedings
holding that the parties were happily married. In Jatin
Agarwal v. State of Telangana & Another (Criminal
Appeal No.456 of 2022, decided on 21.03.2022), a similar
rape case was quashed as the victim got married to the
accused. That was a case where an FIR was lodged against
the accused by the victim for offences under Sections 417,
420, and 376 IPC alleging that on the promise to marry, the
accused made a physical relationship with her, but he
withdrew from the promise and refused to marry her.
However, later, both got married and therefore, they moved
to the High Court of Telangana, seeking the quashing of the
FIR. The High Court dismissed their plea to quash the FIR,
and therefore, they moved to the Apex Court. The Apex
Court accepted the settlement, allowed the appeal, and
quashed the FIR, exercising its powers under Article 142 of
the Constitution of India, observing that it was necessary to
do complete justice to the parties. In K. Dhandapani v.
The State by the Inspector of Police (Cr. A. No.796 of
2022, decided on 09.05.2022), the Apex Court set aside the
conviction and sentence of an accused who raped his own
niece and later married her. The accused was working as a
woodcutter on daily wages in a private factory. An FIR was
lodged against him for committing rape on his niece on a
false promise of marriage under Section 5(j)(ii) read with
Section 6, 5(I) read with Sections 6 and 5(n) read with
Section 6 of the POCSO Act. The trial Court convicted and
sentenced him to ten years of rigorous imprisonment, which
the High Court upheld. Aggrieved thereby, the accused
approached the Apex Court. The accused submitted that
since he has, in fact, married the prosecutrix and they have
two children, it would not be in the interest of justice to
disturb their family life. The State opposed the grant of any
relief to the accused, contending that the prosecutrix was
aged 14 years on the date of the offence and that the
marriage might only be for the purpose of escaping
punishment. The Court taking note of the custom in
Tamilnadu, which permits the marriage of a girl with her
maternal uncle, and the statement of the prosecutrix that
she is leading a happy married life with the appellant, set
aside the conviction observing that "This Court cannot shut
its eyes to the ground reality and disturb the happy family
life of the appellant and the prosecutrix". However, as a
note of caution, the Court added that in the peculiar facts of
the case, it should not be treated as a precedent. Recently
in Kapil Gupta v. State of NCT of Delhi & Another
[(2022) SCC OnLine SC 1030], the Apex Court quashed the
FIR registered under section 376 of IPC as the matter was
amicably settled between the accused and the victim
holding that though ordinarily, cases under Section 376 of
IPC should not be quashed, the Court is not powerless in
exercising the extraordinary jurisdiction to quash the
proceedings in the facts and circumstances of a particular
case. It was further held that while exercising the power,
the Court has also to take into consideration whether the
settlement between the parties is going to result in
harmony between them, which may improve their mutual
relationship and the stage of the proceedings. The Apex
Court was hearing an appeal challenging the judgment of
the High Court of Delhi dismissing the application filed by
the victim for quashing the proceedings under section 376
of IPC invoking section 482 of Cr.P.C. While allowing the
appeal, the Apex Court observed that since the victim
herself is not supporting the prosecution case, even if the
trial is allowed to go ahead, it will end in nothing else than
an acquittal and if the request for quashing is not allowed, it
will amount to adding one more criminal case to the already
overburdened criminal courts.
14. The High Court of Karnataka in Sathish K. and
Others v State of Karnataka [2022 LiveLaw (Kar) 178]
held that an offence under Section 376 IPC can be
permitted to be compounded, in specific circumstances,
which includes a situation where the closure of such a case
would promote the family life of the complainant and the
accused. The Punjab and Haryana High Court in Chandan
Paswan v. State of Punjab and Another(CRM-M-12854
of 2021 decided on 13.04.2023) quashed the proceedings
for rape on the ground that the matter had been
compromised and the accused married the victim. In Ashiq
v. State of Kerala (2019(2) KLT 1130), where the accused
and victim settled the disputes and married subsequently,
the High Court of Kerala in the exercise of the
extraordinary inherent powers under section 482 of the
Cr.P.C. quashed the proceedings for the purpose of welfare
of the victim. In Md. Jahirul Maulana v. State of Assam
(Criminal Petition No.234/2016, decided on 12.07.2016),
the High Court of Gauhati quashed criminal proceedings
against a 'rape accused' who married the 'victim' holding
that chances of conviction in the case are bleak in view of
the compromise between the parties and marriage. It was
observed that: "the ends of justice will demand that they
should be left at their will and their otherwise happy marital
life should not be allowed to be disturbed by the interfering
clouds of litigations looming over their heads." The High
Court of Andhra Pradesh in Gokada Suresh v. State of
Andhra Pradesh (Criminal Petition No.105 of 2023,
decided on 04.01. 2023.) held that the offence under section
376 of IPC can be compounded to promote the family life of
the complainant and accused. In Vijaya Kumar v. State
(Crimiinal Petition No. 136/2020, decided on 08.01.2020),
the High Court of Karnataka held that though the offences
are punishable under Section 376 of IPC and the provisions
of POCSO Act, since the parties have settled the dispute
and the accused and the victim are living together, the
petition filed under Section 482 of Cr.P.C., needs to be
allowed and the proceedings have to be quashed. The High
Court of Delhi in Arshad Ahmad & Others v. State of
NCT of Delhi (WP (Crl). 1185 of 2022 & Crl. M.A. 10056 of
2022, decided on 02.06.2022) while quashing an FIR for the
offence of rape and cruelty by a woman against her father-
in-law and others has said that quashing of FIR in
matrimonial offences is welcome as it shows that parties
have decided to put an end to the dispute as well as the
misery. The High Court of Meghalaya in Shri.
Skhemborlang Suting & Another v. State of Meghalaya
& Another (Crl. Petn. No. 63 of 2021, decided on
23.03.2022.) quashed the case against a man under the
POCSO Act, 2012, for marrying a 16-year-old girl, observing
that it would be an "injustice" to separate a "well-knitted
family unit". Taking note of the unique facts and
circumstances of the case, the court held that allowing
prosecution would "only result in the breakdown of a happy
family relationship and the possible consequence of the wife
having to take care of a baby with no support, physically or
financially from her husband who may be languishing in
jail". In Kundan & Another v. State & Others
(Crl.M.C.No. 27/2022, decided on 21.02.2022), the High
Court of Delhi quashed a similar FIR, considering that the
life of the husband, wife, and child would be "ruined". As
did the High Court of Bombay in Nauman Suleman Khan
v. State of Maharashtra [(2022) SCC OnLine Bom. 1148)],
recently, quashing an FIR under POCSO Act for penetrative
sexual assault after the victim, who on attaining majority,
said that she and the accused were "in love and are now to
be married", and the accused gave the undertaking to
marry her. The court accepted the same, considering the
accused and the victim's "future" and in the interest of a
"peaceful life". The High Court of Punjab and Haryana in
Pankaj @ Sikandar Kumar v. State of Ut Chandigarh
and Another (CRM - M No. 47266 of 2019, decided on
05.03.2020.) quashed an FIR registered under section 376
of IPC and section 6 of the POCSO Act honouring the
agreement between the accused and the victim that they
would solemnize their marriage as soon as the latter attains
the age of marriage. In Manga Singh v. State of Punjab
and Others (Criminal Misc. No.M.19131/2016, decided on
01.05.2018), the High Court of Punjab and Haryana
quashed the proceedings based on a compromise for the
reason that the prosecutrix had solemnized marriage with
the accused prior to the registration of the FIR, a child was
born in that wedlock, and they were living in peace and
harmony. The High Court of Kerala in Freddy @ Antony
Francis and Another v. State of Kerala and Another
(2017 KHC 344) and in Denu P. Thampi v. Ms. X (2019
(2) KLT 996) quashed the criminal proceedings involving
sexual offence under IPC and the POCSO Act, where the
accused is alleged to have committed sexual assault on the
victim on the false promise of marriage, on the ground that
they subsequently married and settled the dispute. It was
held that since the accused and the victim are now residing
as husband and wife, it would be in their welfare to quash
the proceedings. A similar view was taken by the High
Courts of Bombay [(Swapnil Digambar Patil v. The State
of Maharashtra and Another (Criminal Application No.
52/2021, decided on 03.01.2022)], Uttarakhand [(Rahul v.
State of Uttarakhand (Criminal Misc. Application
249/2020, decided on 20.02.2020)] and Punjab and Haryana
[Lovely v. State of Punjab and Another (CRM-M-3577-
2018, decided on 09.03.2018)].
15. The inherent power given to the High Court under
section 482 of Cr.P.C. is with the purpose and object of
advancement of justice. The touchstone for exercising that
power would be to secure the ends of justice. The ends of
justice are higher than the ends of mere law though justice
has got to be administered in accordance with the laws
enacted by the legislature. The concept of justice is elastic
and imprescriptible. There can be no hard and fast line
constricting the power of the High Court to do substantial
justice. A restrictive construction of inherent powers under
Section 482 Cr.P.C. may lead to rigid or specious justice,
which in the given facts and circumstances of a case, may
instead lead to grave injustice. Nonetheless, such powers of
wide amplitude ought to be exercised carefully in the context
of quashing criminal proceedings, bearing in mind: (i) the
Nature and effect of the offence on the consciousness of the
society; (ii) the Seriousness of the injury, if any; (iii) Voluntary
nature of compromise between the accused and the victim; &
(iv) Conduct of the accused persons, prior to and after the
occurrence of the purported offence or other relevant
considerations [See Ramgopal v. State of Madya Pradesh
[2021 (5) KLT 601 (SC)].
''19. There is yet another category of cases where
though the victim alleged that the sexual assault or rape was
forceful or against her will, later, they settled the dispute, got
married and led a peaceful life. In most of those cases, the
victim admits that the allegation of rape was levelled only
because the accused refused to marry her. Allowing
prosecution to continue in those cases would only result in
the disturbance of their happy family life. On the contrary,
the closure of such a case would promote their family life. In
such cases, the ends of justice demand that the parties be
allowed to compromise. However, the Court must ensure that
the marriage is not a camouflage to escape punishment and
the consent given by the victim for compromise was
voluntary. The Court must also be satisfied after considering
all the facts and circumstances of the case that quashing the
proceedings would promote justice for the victim and the
continuation of the proceedings would cause injustice to her.
22. The High Court of Madras [Vijayalakshmi & Anr. V.
State & Anr. (Crl.O.P.232/21 decided on 27.01.2021)], while
quashing a criminal proceeding initiated under the POCSO
Act on the ground of settlement between the accused and the
victim held that punishing an adolescent boy for entering a
relationship with a girl below 18 years of age was never an
objective of this act. "What came to be a law to protect and
render justice to victims and survivors of child abuse can
become a tool in the hands of certain sections of the society
to abuse the process of law.", it added. The High Court of
Calcutta [Ranjit Rajbanshi V. The State of West Bengal and
Others (C.R.A No.458 of 2018, decided on 17/9/2021]
acquitted an accused, holding that a voluntary joint act of
sexual union would not attract offence under the POCSO Act.
The court held that "penetration" as defined under the
POCSO Act must mean a "positive, unilateral act" on the part
of the accused, and consensual participatory intercourse, in
view of the passion involved, need not always make
penetration by itself, a unilateral positive act of the accused
but might also be a union between two persons out of their
own volition. The Court was considering an appeal where the
accused, aged 22, was convicted under Section 376(1) of the
IPC and Section 4 of the POCSO Act by the trial Court. The
accused took the defence that the victim, aged 16½ years,
gave her consent for the act and had admitted her
relationship with him. The High Court of Allahabad [Atul
Mishra V. State of Uttar Pradesh (Crl.Misc.Bail Application
No.53947 of 2021 decided on 25.01.2022] while granting bail
to a man booked under the POCSO Act for impregnating a 14-
year-old girl, said that the law didn't intend to bring cases of
dense romantic affairs between adolescents or teenagers
under its aegis.
23. It is settled that though a minor is not qualified to
enter into a contract, it could be the beneficiary of one. In
other words, a parent or guardian is competent to contract on
behalf of the minor if it is in its best interest. Section 320(4)
of Cr. P.C. says that if the person entitled to compound an
offence is minor or lunatic, any person competent to contract
on their behalf can compound such an offence on their behalf.
Under Rule 7 of Order XXXII of the Code of Civil Procedure, a
next friend or guardian of the minor, with the leave of the
Court, can enter into an agreement or compromise on behalf
of the minor with reference to the suit in which he acts as
next friend or guardian. The term 'best interest of the child'
generally refers to the deliberation courts undertake when
deciding what services, actions, and orders best serve a child.
Article 3.1 of the United Nations Convention on the Rights of
the Child, 1989, states that in all decisions concerning
children that are made by public or private social protection
institutions, courts, administrative authorities or legislative
branches, the child's best interest must be a vital
consideration. 'Best interest' determinations are generally
made by considering several factors, with the child's safety
and wellbeing as the paramount concern. As per Section 2(9)
of the Juvenile Justice (Care and Protection of Children) Act,
2015, 'best interest of the child' means the basis for any
decision taken regarding the child to ensure fulfilment of its
basic rights and needs, identity, social well-being, and
physical, emotional, and intellectual development. Thus,
while dealing with the petitions moved by the parent or
guardian of the sexual assault victims to quash the criminal
proceedings on the ground of compromise, the court must
consider whether the allegations prima facie constitute the
ingredients of the offence, whether the settlement is in the
best interest of the minor victim and whether continuance of
the proceedings against the accused and the participation of
the minor victim in that proceedings would adversely affect
the mental, physical, and emotional well-being of the latter.''
26. These are the broad principles to be borne in mind
while considering the plea to quash criminal proceedings
involving non-compoundable sexual offences based on
compromise. However, every case is unique and must be
decided based on its peculiar facts. The viability of quashing
a criminal proceeding on the ground that the accused and the
sexual assault victim settled the dispute revolves ultimately
around the facts and circumstances of each case, and no
straitjacket formula can be formulated. Apart from the
categories of cases discussed above, where the High Court
has such facts on record which clearly exhibit that the
criminal prosecution involving noncompoundable sexual
offences against women and children will result in greater
injustice to the victim, its closure would only promote her
well-being, and the possibility of a conviction is remote, it can
indubitably evaluate the consequential effects of the offence
beyond the body of an individual and thereafter adopt a
pragmatic approach and very well decide to quash such
proceeding upon a compromise between the accused and the
victim after taking into account all the relevant facts and
circumstances of the particular case including the nature,
magnitude, consequences of the crime and genuineness of
the compromise. Needless to emphasize, the sexual offences
which are grave, heinous, and gruesome in nature shall never
be the subject matter of compromise.''
Here, this is also a case where continuance of the proceedings
against the petitioner is likely to cause greater prejudice to the
victim and the child born out of the relationship between the
petitioner and the victim. Further, the chances of the
successful prosecution are also remote. Therefore, in exercise
of the jurisdiction vested in this Court under Section 482 of the
Code of Criminal Procedure, all further proceedings against
the petitioner can be quashed, as no useful purpose will be
served by continuing with the proceedings against the
petitioner.
Accordingly, the Crl.M.C is allowed and all further
proceedings in S.C. No.705/2020 on the file of the Fast Track
Special Court for POCSO Act, Pattamby, Palakkad (arising out of
Crime No.188/2020 of Agali police station) will stand quashed as
against the petitioner.
Sd/-
GOPINATH P.
JUDGE
ajt
APPENDIX
ANNEXURE 1 - TRUE COPY OF THE FIR IN CRIME NO.188/2020 OF THE AGALI POLICE
STATION DATED 25/05/2020
ANNEXURE 2 - TRUE COPY OF THE FINAL REPORT AS S.C. NO.705/2020 ON THE FILE
OF THE HON'BLE FAST TRACK SPECIAL COURT FOR POCSO ACT, PATTAMBY,
PALAKKAD DISTRICT.
ANNEXURE 3 -TRUE COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT
DATED 25.04.2022
