Allowed

Nishan v. State

Kerala HC26 Oct 2010Crl.MC/835/2010

Case brief

AI extract

What is this about?

In a criminal revision petition under Section 482 Cr.P.C. seeking quashing of proceedings in a case registered under sections 363, 365, 366, 493 and 376 of IPC, the High Court of Kerala held that since the dispute was settled amicably by the first respondent, continuation of prosecution would not serve any purpose and is not in the interest of justice, thus allowing the petition and quashing the F

What did the court decide?

The Crime No. 324/2009 on the file of Chandera Police Station is quashed.

Nishan Vs State — Matrimonial and Divorce | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932

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Crl.MC.No. 835 of 2010() ----------------------------------

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(CRIME NO. 324/09 OF THE CHANDERA POLICE, KASARAGOD DT)

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PETITIONER(S): ACCUSED 1 & 2:

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----------------------------------------------

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1. NISHAN, S/O.NAZIMUDDEEN, 'MOON LIGHT' HOUSE, EDAVA VILLAGE, EDAVA P.O., THIRUVANANTHAPURAM.

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2. ROSIYA, W/O.NAZIMUDDEEN, 'MOON LIGHT' HOUSE, EDAVA VILLAGE, EDAVA P.O., THIRUVANANTHAPURAM.

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BY ADVS. SRI.SHABU SREEDHARAN SRI.C.K.PRASAD SRI.N.A.JOHN JACOB SRI.P.SANJAY SHENOI

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RESPONDENT(S): COMPLAINANT:

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-------------------------------------------------

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1. STATE OF KERALA, REP. BY THE S.I. OF POLICE, CHANDERA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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2. JUBIRIYA N.B., D/O.JAMEELA BEEVI, N.B.HOUSE, POROTT, PADANNA VILLAGE, HOSDURG TALUK, KASARAGOD.

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R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM R2 BY SRI.JAWAHAR JOSE

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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M.SASIDHARAN NAMBIAR, J.

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Crl.M.C No.835 of 2010 -------------------------Dated this the 26th October, 2010

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O R D E R

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Petitioners are the accused in Crime No.324/2009 of Chandera Police Station registered for the offences under Sections 363, 365, 366, 493 and 376 r/w 34 of of Indian Penal Code on Annexure-A1 complaint filed before Judicial First Class Magistrate Court-I, Hosdurg and sent for investigation under Section 156 (3) of Cr.P.C. The complaint was filed by the second respondent. Petition is filed under Section 482 of Cr.P.C to quash the F.I.R and further proceedings contending that entire disputes were settled amicably and consequent to the settlement, it is not in the interest of justice to continue the prosecution. Petitioners would contend that none of the offences is attracted on the allegations raised in Annexure-A1 complaint .

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Second respondent appeared through a counsel and filed an affidavit stating that she was earlier married to one Ashraf of Perumbavoor who was employed in Malaysia and he had divorced her and during the

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Crl.M.C No.835 of 2010

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subsistence of that marriage she got a call in her mobile phone from the first petitioner and they started talking each other and ultimately intimacy developed between them and it lead to deep love. It is stated that subsequently they decided to marry and she voluntarily left the house on 3.4.2009 with the first petitioner in his motor bike travelled to Kannur and then by train went to Bangalore and stayed there for two days and then proceeded to Hyderabad and stayed there for four months. While so, police arrested them from Hyderabad on 16.7.2009, and produced before Judicial First Class Magistrate, Hosdurg and her statement was recorded. Later she was produced before the Division Bench of this Court in the writ petition filed by the the second petitioner, mother of the first petitioner. Before the Division Bench first petitioner represented that after completing the age of 21 and second respondent obtains divorce, he will decide about the marriage. She had left her house with the first petitioner believing that he will marry her. As the first petitioner withdrew from that promise, as instructed by her parents, second respondent

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Crl.M.C No.835 of 2010

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filed a complaint before the Magistrate alleging that she was sexually abused without her consent, though it was a mistake. Subsequently she realised the mistake. She would submit that as marriage proposals are coming, she does not want to spoil her future and therefore sought to quash the proceedings.

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Learned counsel appearing for the petitioners,

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second respondent and learned Public Prosecutor were heard.

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Though at the instance of the petitioners, I am not inclined to quash the proceedings initiated against them under Annexure A2 F.I.R, the case projected by the second respondent is different. True, the second respondent was induced by the first petitioner to accompany him on the promise that he will marry her and they stayed together for more than four months and that too at different parts. When a habeas corpus petition was filed by the second petitioner, first petitioner and second respondent were arrested from Hyderabad and produced before the Division Bench of this Court, first petitioner

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Crl.M.C No.835 of 2010

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violated the promise and had no prick of conscience to discard her. But the question is for that reason, as against the wishes of the second respondent, the victim, the prosecution is to be continued.

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In the light of the affidavit filed by the second respondent, it is clear that no purpose will ultimately be served by undergoing the ordeal of the investigation or trial. The statement of first respondent reveals that she voluntarily accompanied the first petitioner, though believing his words that he will marry her, and subjected herself to the wishes of the first petitioner. In such circumstances, there is no likelihood of a successful prosecution. Hence, it is not in the interest of justice to continue the prosecution.

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The petition is allowed. Crime No.324/2009 on the file of Chandera Police Station is quashed.

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M.SASIDHARAN NAMBIAR JUDGE

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Nishan v. State

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Nishan v. State

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