Kerala High Court
Dinesan vs State Of Kerala on 1 July, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 1ST DAY OF JULY 2024 / 10TH ASHADHA, 1946
CRL.MC NO. 4765 OF 2021
CRIME NO.921/2020 OF NILESWARAM POLICE STATION, KASARAGOD DISTRICT
PETITIONER/ACCUSED:
DINESAN
AGED 41 YEARS
PATTENA, NILESHWARAM VILLAGE, NEELESWARAM, KASARAGOD
BY ADV M.V.AMARESAN
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN 682 031
2 XXXX
BY ADV PHILJO VARUGHESE PHILIPS
PP - NIMA JACOB
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
01.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C. No. 4765 of 2021
2
ORDER
Dated this the 1st day of July, 2024
This Criminal Miscellaneous Case has been filed
under Section 482 of the Code of Criminal Procedure,
1973, to quash all further proceedings pursuant to
Annexure-1(a) FIR in Crime No.921/2020 of Nileswaram
Police Station, Kasaragod.
2. Heard the learned counsel for the petitioner and
the learned Public Prosecutor. Perused the relevant
materials available.
3. In this matter, the prosecution case is that, at
about 10.00 pm on a day during July 2022, while the
defacto complainant was engaged in cleaning house hold
utensils, the accused herein, who is the neighbor of the
defacto complainant trespassed upon her residence and
subjected her to forceful sexual intercourse despite her
resistance. Accordingly, the prosecution alleges commission
of offences punishable under Sections 450 and 376 of IPC.
4. The learned counsel for the petitioner argued
that, now the matter has been settled and the defacto
complainant filed an affidavit supporting settlement, stating
that she had no grievance in quashing the proceedings in
Crime No.921/2020 of Nileswaram Police Station,
Kasaragod. Therefore, the FIR registered in this crime
required to be quashed in view of the settlement.
5. The learned Public Prosecutor strongly opposed
this contention and submitted that this is a clear case of
rape as borne out from the FIS. Therefore, this crime could
not be quashed merely on settlement, restraining
investigation.
6. On perusal of the records, an affidavit filed by the
defacto complainant has been placed to contend that the
matter has been settled and the defacto complainant and
the accused restored good relation. Therefore, the defacto
complainant has no objection in quashing the crime.
7. On perusal of the FIS given by the defacto
complainant, it is stated that the defacto complainant, who
married twenty years ago, resided along with her husband
and children in various places for rent. During the month of
July, 2020, while residing at a rental house near Janashakti
reading room, Pattetha, at about 10.00 pm, while she was
engaged in cleaning house hold utensils, the accused, who
is the neighbor of the defacto complainant, trespassed upon
the kitchen, forcefully taken her to a cot and committed
rape on her. The further allegation was that, when the
defacto complainant made noise, the accused put cloth on
her mouth to resist the same. On that date, the husband of
the defacto complainant was not in station and she
informed the incident to her husband after one week and
there was some discussion in between her husband and
children, due to which there occurred delay in lodging the
FIS.
8. It is true that the Apex Court in catena of
decisions held that High Court can exercise its power vested
under section 482 Cr.P.C. beyond the scope of Section 320
Cr.P.C. It is held that High Court can even quash the
proceedings relate to non-compoundable offences on the
basis of the compromise entered into between the parties
but at the same time Apex Court sternly cautioned that the
proceeding of serious and heinous offences which affects
the society at large, should not be quashed on the basis of
compromise executed between the parties.
9. In a three Judges Bench of the Apex Court in Gian
Singh v. State of Punjab and Another, reported in
[(2012) 10 SCC 303], the Apex Court held that High Court
can quash the proceedings in the cases of non-
compoundable offences on the basis of settlement arrived at
between the parties and observed as under:-
"58. Where the High Court quashes a
criminal proceeding having regard to the fact
that the dispute between the offender and the
victim has been settled although the offences
are not compoundable, it does so as in its
opinion, continuation of criminal proceedings
will be an exercise in futility and justice in the
case demands that the dispute between the
parties is put to an end and peace is restored;
securing the ends of justice being the ultimate
guiding factor. No doubt, crimes are acts
which have harmful effect on the public and
consist in wrongdoing that seriously
endangers and threatens the well-being of the
society and it is not safe to leave the crime-
doer only because he and the victim have
settled the dispute amicably or that the victim
has been paid compensation, yet certain
crimes have been made compoundable in law,
with or without the permission of the court. In
respect of serious offences like murder, rape,
dacoity, etc., or other offences of mental
depravity under IPC or offences of moral
turpitude under special statutes, like the
Prevention of Corruption Act or the offences
committed by public servants while working in
that capacity, the settlement between the
offender and the victim can have no legal
sanction at all. However, certain offences
which overwhelmingly and predominantly
bear civil flavour having arisen out of civil,
mercantile, commercial, financial, partnership
or such like transactions or the offences
arising out of matrimony, particularly relating
to dowry, etc. or the family dispute, where the
wrong is basically to the victim and the
offender and the victim have settled all
disputes between them amicably, irrespective
of the fact that such offences have not been
made compoundable, the High Court may
within the framework of its inherent power,
quash the criminal proceeding or criminal
complaint or FIR if it is satisfied that on the
face of such settlement, there is hardly any
likelihood of the offender being convicted and
by not quashing the criminal proceedings,
justice shall be casualty and ends of justice
shall be defeated. The above list is illustrative
and not exhaustive. Each case will depend on
its own facts and no hard-and-fast category
can be prescribed".
10. In Narinder Singh and Others v. State of
Punjab and Another reported in [(2014) 9 SCC 466], the
Supreme Court held that in case of heinous and serious
offences, which are generally to be treated as crime against
society, it is the duty of the State to punish the offender.
Hence, even when there is a settlement, the view of the
offender will not prevail since it is in the interest of society
that the offender should be punished to deter others from
committing a similar crime.
11. In the decision in Shimbhu v. State of Haryana
reported in [AIR 2014 Supreme Court 739] (three Bench),
the Apex Court in Paragraph Nos.21 and 22 held as under:
21. Thus, the law on the issue can be
summarized to the effect that punishment
should always be proportionate/
commensurate to the gravity of offence.
Religion, race, caste, economic or social status
of the accused or victim or the long pendency
of the criminal trial or offer of the rapist to
marry the victim or the victim is married and
settled in life cannot be construed as special
factors for reducing the sentence prescribed
by the statute. The power under the proviso
should not be used indiscriminately in a
routine, casual and cavalier manner for the
reason that an exception clause requires strict
interpretation.
22. Further, a compromise entered into
between the parties cannot be construed as a
leading factor based on which lesser
punishment can be awarded. Rape is a non-
compoundable offence and it is an offence
against the society and is not a matter to be
left for the parties to compromise and settle.
Since the Court cannot always be assured that
the consent given by the victim in
compromising the case is a genuine consent,
there is every chance that she might have
been pressurized by the convicts or the
trauma undergone by her all the years might
have compelled her to opt for a compromise.
In fact, accepting this proposition will put an
additional burden on the victim. The accused
may use all his influence to pressurize her for
a compromise. So, in the interest of justice
and to avoid unnecessary pressure/
harassment to the victim, it would not be safe
in considering the compromise arrived at
between the parties in rape cases to be a
ground for the Court to exercise the
discretionary power under the proviso to
Section 376(2) of IPC.
12. In the decision in State of Madhya Pradesh v.
Madanlal reported in [AIR 2015 Supreme Court 3003]
(two Bench), the Apex Court considered a case involved
offences under Sections 354, 376(2)(f) and 511 of the IPC,
where the victim was a minor girl and held in Paragraph
No.16 as under:
16. We would like to clearly state that in a
case of rape or attempt of rape, the conception
of compromise under no circumstances can
really be thought of. These are crimes against
the body of a woman which is her own temple.
These are offences which suffocate the breath
of life and sully the reputation. And reputation,
needless to emphasise, is the richest jewel one
can conceive of in life. No one would allow it to
be extinguished. When a human frame is
defiled, the "purest treasure", is lost. Dignity of
a woman is a part of her non-perishable and
immortal self and no one should ever think of
painting it in clay. There cannot be a
compromise or settlement as it would be
against her honour which matters the most. It
is sacrosanct. Sometimes solace is given that
the perpetrator of the crime has acceded to
enter into wedlock with her which is nothing
but putting pressure in an adroit manner; and
we say with emphasis that the Courts are to
remain absolutely away from this subterfuge to
adopt a soft approach to the case, for any kind
of liberal approach has to be put in the
compartment of spectacular error. Or to put it
differently, it would be in the realm of a
sanctuary of error. We are compelled to say so
as such an attitude reflects lack of sensibility
towards the dignity, the elan vital, of a woman.
Any kind of liberal approach or thought of
mediation in this regard is thoroughly and
completely sans legal permissibility. It has to
be kept in mind, as has been held in Shyam
Narain v. State (NCT of Delhi) that:
"Respect for reputation of women
in the society shows the basic
civility of a civilised society. No
member of society can afford to
conceive the idea that he can
create a hollow in the honour of a
woman. Such thinking is not only
lamentable but also deplorable. It
would not be an exaggeration to
say that the thought of sullying
the physical frame of a woman is
the demolition of the accepted
civilised norm i.e. "physical
morality". In such a sphere,
impetuosity has no room. The
youthful excitement has no
place. It should be paramount in
everyone's mind that, on the one
hand, society as a whole cannot
preach from the pulpit about
social, economic and political
equality of the sexes and, on the
other, some perverted members
of the same society dehumanise
the woman by attacking her body
and ruining her chastity. It is an
assault on the individuality and
inherent dignity of a woman with
the mindset that she should be
elegantly servile to men."
13. The Three Judges Bench of the Apex Court in the
case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai
Karmur and Others v. State of Gujarat and Another
reported in [(2017) 9 SCC 641], after discussing its earlier
judgments observed as under:
"16. The broad principles which emerge from
the precedents on the subject, may be
summarised in the following propositions:
16(1). Section 482 preserves the
inherent powers of the High Court to
prevent an abuse of the process of
any court or to secure the ends of
justice. The provision does not confer
new powers. It only recognises and
preserves powers which inhere in the
High Court.
16.2. The invocation of the
jurisdiction of the High Court to
quash a first information report or a
criminal proceeding on the ground
that a settlement has been arrived at
between the offender and the victim
is not the same as the invocation of
jurisdiction for the purpose of
compounding an offence. While
compounding an offence, the power
of the court is governed by the
provisions of Section 320 of the Code
of Criminal Procedure, 1973. The
power to quash under Section 482 is
attracted even if the offence is non-
compoundable.
16.3. In forming an opinion whether
a criminal proceeding or complaint
should be quashed in exercise of its
jurisdiction under Section 482, the
High Court must evaluate whether
the ends of justice would justify the
exercise of the inherent power.
16.4. While the inherent power of the
High Court has a wide ambit and
plenitude it has to be exercised (i) to
secure the ends of justice, or (ii) to
prevent an abuse of the process of
any court.
16.5. The decision as to whether a
complaint or first information report
should be quashed on the ground
that the offender and victim have
settled the dispute, revolves
ultimately on the facts and
circumstances of each case and no
exhaustive elaboration of principles
can be formulated.
16.6. In the exercise of the power
under Section 482 and while dealing
with a plea that the dispute has been
settled, the High Court must have
due regard to the nature and gravity
of the offence. Heinous and serious
offences involving mental depravity
or offences such as murder, rape and
dacoity cannot appropriately be
quashed though the victim or the
family of the victim have settled the
dispute. Such offences are, truly
speaking, not private in nature but
have a serious impact upon society.
The decision to continue with the
trial in such cases is founded on the
overriding element of public interest
in punishing persons for serious
offences.
16.7. As distinguished from serious
offences, there may be criminal
cases which have an overwhelming
or predominant element of a civil
dispute. They stand on a distinct
footing insofar as the exercise of the
inherent power to quash is
concerned.
16.8. Criminal cases involving
offences which arise from
commercial, financial, mercantile,
partnership or similar transactions
with an essentially civil flavour may
in appropriate situations fall for
quashing where parties have settled
the dispute.
16.9. In such a case, the High Court
may quash the criminal proceeding if
in view of the compromise between
the disputants, the possibility of a
conviction is remote and the
continuation of a criminal proceeding
would cause oppression and
prejudice; and
16.10. There is yet an exception to
the principle set out in propositions
16.8. and 16.9. above. Economic
offences involving the financial and
economic well-being of the State
have implications which lie beyond
the domain of a mere dispute
between private disputants. The High
Court would be justified in declining
to quash where the offender is
involved in an activity akin to a
financial or economic fraud or
misdemeanour. The consequences of
the act complained of upon the
financial or economic system will
weigh in the balance.
14. The Three Judge Bench of the Apex Court in State
of Madhya Pradesh v. Laxmi Narayan & Ors. reported in
[(2019) 5 SCC 688] laid down the following principles:-
15. Considering the law on the point and the
other decisions of this Court on the point,
referred to hereinabove, it is observed and
held as under:
15.1. That the power conferred under
Section 482 of the Code to quash the
criminal proceedings for the non-
compoundable offences under
Section 320 of the Code can be
exercised having overwhelmingly and
predominantly the civil character,
particularly those arising out of
commercial transactions or arising
out of matrimonial relationship or
family disputes and when the parties
have resolved the entire dispute
amongst themselves;
15.2. Such power is not to be
exercised in those prosecutions which
involved heinous and serious offences
of mental depravity or offences like
murder, rape, dacoity, etc. Such
offences are not private in nature and
have a serious impact on society;
15.3. Similarly, such power is not to
be exercised for the offences under
the special statutes like the
Prevention of Corruption Act or the
offences committed by public
servants while working in that
capacity are not to be quashed
merely on the basis of compromise
between the victim and the offendor;
15.4. Offences under Section 307 IPC
and the Arms Act, etc. would fall in
the category of heinous and serious
offences and therefore are to be
treated as crime against the society
and not against the individual alone,
and therefore, the criminal
proceedings for the offence under
Section 307 IPC and/or the Arms Act,
etc. which have a serious impact on
the society cannot be quashed in
exercise of powers under Section 482
of the Code, on the ground that the
parties have resolved their entire
dispute amongst themselves.
However, the High Court would not
rest its decision merely because there
is a mention of Section 307 IPC in the
FIR or the charge is framed under this
provision. It would be open to the
High Court to examine as to whether
incorporation of Section 307 IPC is
there for the sake of it or the
prosecution has collected sufficient
evidence, which if proved, would lead
to framing the charge under Section
307 IPC. For this purpose, it would be
open to the High Court to go by the
nature of injury sustained, whether
such injury is inflicted on the
vital/delicate parts of the body,
nature of weapons used, etc.
However, such an exercise by the
High Court would be permissible only
after the evidence is collected after
investigation and the charge-sheet is
filed/charge is framed and/or during
the trial. Such exercise is not
permissible when the matter is still
under investigation. Therefore, the
ultimate conclusion in paras 29.6 and
29.7 of the decision of this Court in
Narinder Singh (supra) should be read
harmoniously and to be read as a
whole and in the circumstances
stated hereinabove;
15.5. While exercising the power
under Section 482 of the Code to
quash the criminal proceedings in
respect of non-compoundable
offences, which are private in nature
and do not have a serious impact on
society, on the ground that there is a
settlement/compromise between the
victim and the offender, the High
Court is required to consider the
antecedents of the accused; the
conduct of the accused, namely,
whether the accused was absconding
and why he was absconding, how he
had managed with the complainant to
enter into a compromise, etc.
15. The Apex Court in the case of Arun Singh and
Others v. State of Uttar Pradesh Through its
Secretary and Another reported in [(2020) (3) SCC 736],
held as under:-
14. In another decision in Narinder
Singh v. State of Punjab (supra) it has been
observed that in respect of offence against
the society it is the duty to punish the
offender. Hence, even where there is a
settlement between the offender and victim
the same shall not prevail since it is in
interests of the society that offender should
be punished which acts as deterrent for
others from committing similar crime. On the
other hand, there may be offences falling in
the category where the correctional objective
of criminal law would have to be given more
weightage than the theory of deterrent
punishment. In such cases, the court may be
of the opinion that a settlement between the
parties would lead to better relations
between them and would resolve a festering
private dispute and thus may exercise power
under Section 482 CrPC for quashing the
proceedings or the complaint or the FIR as
the case may be.
16. The Apex Court in case of Ram Gopal & Another
v. State of Madhya Pradesh , reported in [(2021 0
Supreme (SC) 529)] had occasioned to discuss the issue
and observed in paragraph No.14 as under:
14. In other words, grave or serious
offences or offences which involve moral
turpitude or have a harmful effect on the social
and moral fabric of the society or involve
matters concerning public policy, cannot be
construed betwixt two individuals or groups
only, for such offences have the potential to
impact the society at large. Effacing abominable
offences through quashing process would not
only send a wrong signal to the community but
may also accord an undue benefit to
unscrupulous habitual or professional offenders,
who can secure a "settlement" through duress,
threats, social boycotts, bribes or other dubious
means. It is well said that "let no guilty man
escape, if it can be avoided."
17. The Hon'ble Supreme Court in the decision
Daxaben v. The State of Gujarat & others reported in
[2022 LiveLaw (SC) 642] stated as under:
38. However, before exercising its
power under Section 482 of the Cr.P.C. to
quash an FIR, criminal complaint and/or
criminal proceedings, the High Court, as
observed above, has to be circumspect and
have due regard to the nature and gravity of
the offence. Heinous or serious crimes, which
are not private in nature and have a serious
impact on society cannot be quashed on the
basis of a compromise between the offender
and the complainant and/or the victim.
Crimes like murder, rape, burglary, dacoity
and even abetment to commit suicide are
neither private nor civil in nature. Such
crimes are against the society. In no
circumstances can prosecution be quashed
on compromise, when the offence is serious
and grave and falls within the ambit of crime
against society.
39. Orders quashing FIRs and/or
complaints relating to grave and serious
offences only on basis of an agreement with
the complainant, would set a dangerous
precedent, where complaints would be
lodged for oblique reasons, with a view to
extract money from the accused.
Furthermore, financially strong offenders
would go scot free, even in cases of grave
and serious offences such as murder, rape,
bride-burning, etc. by buying off
informants/complainants and settling with
them. This would render otiose provisions
such as Sections 306, 498A, 304-B etc.
incorporated in the IPC as a deterrent, with a
specific social purpose.
40. In Criminal Jurisprudence, the
position of the complainant is only that of
the informant. Once an FIR and/or criminal
complaint is lodged and a criminal case is
started by the State, it becomes a matter
between the State and the accused. The
State has a duty to ensure that law and
order is maintained in society. It is for the
state to prosecute offenders. In case of
grave and serious non-compoundable
offences which impact society, the informant
and/or complainant only has the right of
hearing, to the extent of ensuring that
justice is done by conviction and punishment
of the offender. An informant has no right in
law to withdraw the complaint of a non-
compoundable offence of a grave, serious
and/or heinous nature, which impacts
society.
18. The Supreme Court in the case of P.Dharmraj v.
Shanmugam and others decided on 8th September 2022 in
Crl.Appeal Nos.1515-1516 of 2022, after discussing its earlier
judgments, observed in paragraph No.42 as under:
"Thus it is clear from the march of law that
the Court has to go slow even while
exercising jurisdiction under Section 482
Cr.PC or Article 226 of the Constitution in the
matter of quashing of criminal proceedings
on the basis of a settlement reached
between the parties, when the offences are
capable of having an impact not merely on
the complainant and the accused but also on
Others."
19. Thus, the law emerges is that, in respect of
serious offences like murder, rape, dacoity, etc., or other
offences of mental depravity under IPC or offences of moral
turpitude under special statutes, like the Prevention of
Corruption Act or the offences committed by public servants
while working in that capacity, the settlement between the
offender and the victim can have no legal sanction at all. In
a case of rape or attempt of rape, the conception of
compromise under no circumstances can really be thought
of. These are crimes against the body of a woman which is
her own temple. These are offences which suffocate the
breath of life and sully the reputation. And reputation,
needless to emphasise, is the richest jewel one can
conceive of in life. No one would allow it to be extinguished.
When a human frame is defiled, the "purest treasure", is
lost. Dignity of a woman is a part of her non-perishable and
immortal self and no one should ever think of painting it in
clay. There cannot be a compromise or settlement as it
would be against her honour which matters the most. It is
sacrosanct. Sometimes solace is given that the perpetrator
of the crime has acceded to enter into wedlock with her
which is nothing but putting pressure in an adroit manner;
and that the Courts are to remain absolutely away from this
subterfuge to adopt a soft approach to the case, for any
kind of liberal approach has to be put in the compartment of
spectacular error. Or to put it differently, it would be in the
realm of a sanctuary of error. Such an attitude reflects lack
of sensibility towards the dignity, the elan vital, of a woman.
Any kind of liberal approach or thought of mediation in this
regard is thoroughly and completely sans legal
permissibility. Heinous and serious offences involving
mental depravity or offences such as murder, rape and
dacoity cannot appropriately be quashed though the victim
or the family of the victim have settled the dispute. Such
offences are, truly speaking, not private in nature but have
a serious impact upon society. The decision to continue with
the trial in such cases is founded on the overriding element
of public interest in punishing persons for serious offences.
In other words, grave or serious offences or offences which
involve moral turpitude or have a harmful effect on the
social and moral fabric of the society or involve matters
concerning public policy, cannot be construed betwixt two
individuals or groups only, for such offences have the
potential to impact the society at large. Effacing abominable
offences through quashing process would not only send a
wrong signal to the community, but may also accord an
undue benefit to unscrupulous habitual or professional
offenders, who can secure a "settlement" through duress,
threats, social boycotts, bribes or other dubious means. It is
well said that "let no guilty man escape, if it can be
avoided."
20. Thus, the law as it stands is that although High
Court can invoke its jurisdiction u/s.482 Cr.P.C. even in non-
compoundable offence and can quash the proceedings on
the basis of settlement arrived at between the parties even
in the cases of non-compoundable offences but while
exercising its jurisdiction this Court must consider the fact
that whether the proceeding relates to any serious and
heinous offences and whether the crime in question has
impact over the society. In cases of serious nature which
affects the society at large this Court should not exercise its
jurisdiction under Section 482 Cr.P.C. for quashing the
proceedings on the basis of compromise executed between
the parties.
21. In the present case, sexual assault against the
defacto complainant, which led to registration of crime under
Sections 450 and 376 of IPC, sought to be quashed merely on
the ground of settlement. Going by the available materials,
prima facie, the allegation is made out. Since the law does
not permit quashment sought for in the facts of this case, the
reliefs sought for are liable to fail. Accordingly, this petition
also must fail.
In the result, this Criminal Miscellaneous Case
stands dismissed.
Sd/-
A. BADHARUDEEN
JUDGE
SK
PETITIONER ANNEXURES :
Annexure 1 TRUE COPY OF F.I.S GIVEN BY 2ND
RESPONDENT TO NEELESWARAM POLICE DATED
18-11-2020
Annexure 1(a) TRUE COPY OF FIR IN CRIME NO. 921/2020
REGISTERED BY NILESWARAM POLICE DATED 3-
12-2020
Annexure 2 TRUE COPY OF AFFIDAVIT SWORN TO BY THE
2ND RESPONDENT DATED 28-09-2021.
