Kerala High Court
Kishor Nayithur vs State Of Kerala on 30 June, 2025
2025:KER:47140
Crl.M.C.No.9455/2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 30TH DAY OF JUNE 2025 / 9TH ASHADHA, 1947
CRL.MC NO. 9455 OF 2024
CRIME NO.23/2021 OF Peringome Police Station, Kannur
SC NO.823 OF 2021 OF (DISTRICT COURT & SESSIONS COURT
THALASSERY)*
*FAST TRACK SPECIAL COURT POCSO, TALIPARAMBA
*Name of the court is corrected as FAST TRACK SPECIAL COURT
POCSO, TALIPARAMBA instead of 'District & Sessions Court,
Thalassery' as per order dated 07.03.2025 in Crl.M.A.2/2025 in
Crl.MC No.9455/2024
PETITIONER/ACCUSED:
KISHOR NAYITHUR, AGED 31 YEARS
S/O. KUNHIKRISHNAN, NAYITHUR HOUSE, THOUWARA,
PERINTHATTA AMSOM, PERINGOME, KANNUR DISTRICT.,
PIN - 670622
BY ADVS.
SRI.M.ANUROOP
SRI.M.DEVESH
SHRI.MURSHID ALI M.
SMT.JYOTHIS MARY
RESPONDENTS/STATE AND DE FACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 XXXXXXXXXX
AGED XXX YEARS, XXXXXXXXXX
SRI.SUDHEER G.,PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 26.06.2025, THE COURT ON 30.06.2025 PASSED THE FOLLOWING:
2025:KER:47140
Crl.M.C.No.9455/2024 2
ORDER
The accused in S.C.No.823/2021 on the files of the Fast Track
Special Court (POCSO), Taliparamba has filed this petition under
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to quash
the proceedings against him in the said case. The offence alleged
against him is under Section 376(2)(n) I.P.C.
2. The prosecution case is that the petitioner subjected the
de facto complainant/2nd respondent to rape on various occasions
during the year 2018 to 2021 by threatening her that the morphed
photograph of the de facto complainant would be circulated among
the local people and her husband. It is alleged that the petitioner
managed to take a selfie of the de facto complainant with him in the
month of May, 2018 when she happened to accept his offer of lift and
travelled in the car of the petitioner. Thereafter, on several occasions,
the petitioner allegedly subjected the de facto complainant to rape
and sexual harassment inside his car parked at various places after
coercing the de facto complainant under threat to travel with him.
The case has been registered by the Peringome Police of Kannur
District on the basis of the first information statement given by the de
facto complainant on 21.08.2021. After the completion of the
2025:KER:47140
investigation, the Inspector of Police, Peringome laid the final report
before the court.
3. In the present petition, the petitioner would contend that
he has married the de facto complainant and they are residing
together. It is further contended that the de facto complainant had
sworn an affidavit stating that she has no grievances subsisting
against the petitioner and no objection in quashing the final report in
this case. For the above reason, the petitioner seeks to quash the
proceedings against him in the aforesaid case.
4. Heard the learned counsel for the petitioner and the
learned Public Prosecutor representing the State of Kerala.
5. The main ground urged by the petitioner for the
quashment of the case against him is that he has married the de facto
complainant and they are residing together. The above contention of
the petitioner is factually incorrect since it is seen that the de facto
complainant is the wife of CW6, and there is absolutely nothing on
record to show that the marriage of the de facto complainant with
CW6 has been dissolved by the procedures established by law. That
apart, there is no such contention on the part of the de facto
complainant in the two affidavits sworn by her on 15.07.2024 and
2025:KER:47140
10.06.2025. This is not a case where the consent of the de facto
complainant has been obtained by the petitioner upon the false
promise of marriage. On the other hand, the specific case of the de
facto complainant is that the petitioner managed to indulge in sexual
relationship with her by subjecting her to emotional blackmailing by
saying that the morphed selfie photograph of the de facto
complainant would be circulated to her husband and other local
people. It is also seen from the prosecution records that due to the
above mental trauma suffered by the de facto complainant as a result
of the persistent threat and sexual harassment of the petitioner, she
attempted to commit suicide on 24.01.2021. It is thereafter that the
whole incident came to light. In such a case, it is not possible for this
Court to invoke the inherent powers under Section 528 of BNSS to
quash the proceedings even if the accused has managed to win over
the victim and to get an affidavit from her to the effect that she has
no objection in quashing the criminal proceedings against the
accused.
6. 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
2025:KER:47140
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 between the offender and the
victim can have no legal sanction at all. xxxxxxx"
7. 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
2025:KER:47140
such cases is founded on the overriding element of public interest in
punishing persons for serious offences.
8. 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 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.
2025:KER:47140
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."
9. 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
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
2025:KER:47140
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."
10. Very 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 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.
11. Thus the position of law is now settled that the
prosecution of heinous offences like rape and POCSO Act crimes
2025:KER:47140
cannot be terminated by this Court in exercise of its powers under
Section 482 Cr.P.C/Section 528 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 on the basis of the compromise which would definitely
be the consequence of the offenders managing to win over the
victims or their relatives by inducement or threat.
12. 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.
13. 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
