Kerala High Court
E.F. Jose vs State Of Kerala on 21 July, 2025
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Crl.M.C.No.5433/2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
CRL.MC NO. 5433 OF 2025
CRIME NO.1254/2020 OF Irinjalakuda Police Station, Thrissur
SC NO.1204 OF 2024 OF SPECIAL COURT FOR SC/ST ATROCITIES ACT
CASES, THRISSUR
PETITIONER/ACCUSED:
E.F. JOSE, AGED 67 YEARS
S/O. LATE E.G. FRANCIS, ELAVATHINGAL KANJANIKARAN
HOUSE, TANA, IRINJALAKKUDA, THRISSUR, PIN - 680121
BY ADVS.
SRI.C.P.UDAYABHANU
SRI.NAVANEETH.N.NATH
RESPONDENT/STATE & DE FACTO COMPLAINANT:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 XXX
XXXX
SRI.SUDHEER.G, PUBLIC PROSECUTOR
BY ADV SRI.P.R.AJAY
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
15.07.2025, THE COURT ON 21.07.2025 PASSED THE FOLLOWING:
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ORDER
The petitioner is the accused in S.C No.1204/2024 on the files of
the Special Court for SC/ST Atrocities Act Cases, Thrissur. The offence
alleged against him are under Sections 376(1) I.P.C and Section
3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
2. The prosecution case is that the petitioner, who belonged
to the Christian community, committed rape upon the de facto
complainant, whom he knew to be belonging to Scheduled Caste
community, on 02.08.2020 at about 6:45 p.m. It is stated that the
petitioner brought the de facto complainant, a home nurse, to his
residence for postpartum care of his daughter, and resorted to the
sexual assault by taking her to the rear side of his house at the terrace
portion, by saying that some articles are to be taken from there. He is
alleged to have caught hold of her and indulged in penetrative sexual
assault.
3. The case has been registered by the Inspector of Police,
Irinjalakkuda on 12.08.2020 on the basis of the first information
statement given by the de facto complainant. After the completion of
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the investigation, the Deputy Superintendent of Police, Irinjalakkuda
laid the final report before the Special Court.
4. In the present petition, the petitioner would contend that
he is totally innocent and that he has been falsely implicated in this
case. It is further stated that whatever happened during the stay of
the de facto complainant at the house of the petitioner was with her
free consent. Another contention raised by the petitioner in this
petition is that the de facto complainant had sworn an affidavit
expressing her desire to drop all proceedings initiated against the
petitioner. For the above reasons, the petitioner seeks to quash the
proceedings against him.
5. Heard the learned counsel for the petitioner and the
learned Public Prosecutor representing the State of Kerala.
6. The prosecution records would reveal that the petitioner
has resorted to the treacherous act of penetrative sexual assault upon
a lady belonging to the Scheduled Caste community, who was brought
to his house as home nurse to his daughter. The incident is said to
have happened on the first day when the survivor was taken by the
petitioner to his house. According to the statement given by the de
facto complainant to the police, the physical and mental trauma
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suffered by her as a result of the sexual assault committed by the
petitioner, was the reason why she preferred the complaint after ten
days from the date of the incident. It is true that the petitioner has
produced an affidavit, said to have been sworn by the survivor, stating
that the version given by her to the police was modulated by them into
an incident of forceful rape and that there were no such instances of
sexual assault upon her. There is also a bald statement in the above
affidavit that whatever occurred in the house of the petitioner was with
her full consent. It is not possible to act upon the above affidavit and
to quash the proceedings against the petitioner since it is seen that the
statements given by the de facto complainant to the police would
clearly bring home a case of vulgar and sordid sexual assault upon a
lady belonging to the marginalised sections of the society, who was
taken by the petitioner to his house to work as a home nurse to his
daughter. True that the statements in the affidavit sworn in English
language would give the impression that the investigating agency had
manipulated the version of the de facto complainant about the sexual
assault perpetrated upon her by the petitioner. But, it is not possible
to discern from the above affidavit as to what prompted her to prefer a
complaint to the police, if she was having consensual sex with the
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petitioner. That being so, it is doubtful whether the de facto
complainant had signed the affidavit, after fully understanding the
meaning and purport of the averments incorporated thereunder in
English language. Even otherwise, in cases like this, it is not possible
to invoke the powers under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 to stifle the prosecution case.
7. In the celebrated decision of the Apex Court in Gian Singh
v. State of Punjab [(2012) 10 SCC 303], the Hon'ble Supreme
Court held in unequivocal terms that there is absolutely no scope for
any compromise in serious offences like rape, murder, dacoity etc. The
relevant portion of the aforesaid judgment laying down the law in this
regard is extracted hereunder:
"xxxx 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
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between the offender and the victim can have no legal
sanction at all. xxxxxxx"
8. In Parbatbhai Aahir v. State of Gujarat [(2017) 9
SCC 641], the Apex Court reiterated the law laid down in Gian Singh
(supra) and held that heinous and serious offences involving mental
depravity or offences such as murder, rape and decoity cannot be
appropriately be quashed though the victim or the family of the victim
have settled the dispute, and that such offences are not private in
nature, but have a serious impact upon society. It is further observed
thereunder that 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.
9. In State of M.P v. Madanlal [(2015) 7 SCC 681], the
Hon'ble Supreme Court held that in the offence of rape or attempt to
rape, the conception of compromise under no circumstances can really
be thought of, and those offences are crimes against the body of a
woman which is her own temple, and that those are offences which
suffocate the breath of life and sully the reputation. It is further
observed in the aforesaid decision that the dignity of a woman is part
of her non-perishable and immortal self and no one should ever think
of painting in clay, and there cannot be a compromise or settlement as
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it would be against her honour which matters the most. The relevant
paragraph in the aforesaid judgment of the Apex Court is extracted
hereunder:
18. The aforesaid view was expressed while dealing with the
imposition of sentence. We would like to clearly state that in
a case of rape or attempt to 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 the 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."
10. In Ramji Lal Bairwa v. State of Rajasthan [(2025) 5
SCC 117], the Apex Court has made it clear that heinous and serious
offences could not be quashed even though the victim or victim's
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family and the offender had settled the dispute. The relevant
paragraph of the judgment where the law is laid down in the above
regard, is extracted hereunder:
"36. Thus, in unambiguous terms this Court held that before
exercising the power under Section 482CrPC the High Court
must have due regard to the nature and gravity of the crime
besides observing and holding that heinous and serious
offences could not be quashed even though a victim or
victim's family and the offender had settled the dispute. This
Court held that such offences are not private in nature and
have a serious impact on the society. Having understood the
position of law on the second question that it is the bounden
duty of the court concerned to consider whether the
compromise is just and fair besides being free from undue
pressure we will proceed to consider the matter further."
11. Recently, the Hon'ble Apex Court has held in the landmark
judgment of the case In Re: Right to Privacy of Adolescents
[2024 SCC Online SC 2055], that when offences of rape and
aggravated penetrative sexual assault are committed, by exercising its
jurisdiction under Article 226 of the Constitution of India and/or
Section 482 of the Cr.PC, the High Court cannot acquit an accused
whose guilt has been proved. It is true that the aforesaid dictum
applies to a case where the offence alleged was found to have been
proved in the trial. But, the dictum in the aforesaid decision, when
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taken along with the law laid down by the Apex Court, consistently
alerting the High Courts against the exercise of the powers under
Section 482 Cr.PC for stifling the prosecution on the ground of minor
drawbacks, it has to be taken that quashment cannot be resorted to
when the records relied on by the prosecution are prima facie
indicative of the commission of offence by the accused.
12. Thus the position of law is now settled that the prosecution
of heinous offences like rape and POCSO Act crimes cannot be
terminated by this Court in exercise of its powers under Section 482
Cr.P.C/Section 528 of the BNSS on the basis of the compromise which
arose out of a situation where the offenders succeeded in winning over
the victims or their relatives by inducement or threat.
13. As far as the present case is concerned, the prayer of the
petitioner to quash the proceedings against him by acting upon the
affidavit sworn by the victim that she has no subsisting grievance
against him and nor interested in continuing the prosecution, cannot
be entertained since it would be against the settled principles of law in
this regard.
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14. In view of the discussions aforesaid, I find no merit in the
present petition for quashing the criminal prosecution against the
petitioner.
In the result, the petition is hereby dismissed.
(sd/-)
G. GIRISH, JUDGE
jsr
