Dismissed

Rahim Abdul Hameed v. State of Kerala

Kerala HC24 Oct 2019Crl.MC/1638/2018

Case brief

AI extract

What is this about?

In a criminal miscellaneous matter under Section 482 Cr.P.C., the court dismissed the petitioner's plea to quash rape and POCSO proceedings based on a settlement with the victim's family. The court held that grave offences against a minor are not amenable to quashment via settlement.

What did the court decide?

The criminal miscellaneous case for quashment of the final report regarding rape and POCSO charges is dismissed.

Rahim Abdul Hameed Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2019)

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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 ALEXANDER THOMAS

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THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941

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Crl.MC.No.1638 OF 2018

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AGAINST THE ORDER/JUDGMENT IN SC 709/2016 OF SPECIAL COURT UNDER POCSO ACT, MANJERI

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CRIME NO.203/2016 OF Thenhipalam Police Station , Malappuram

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PETITIONER/S:

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RAHIM ABDUL HAMEED, S/O.HAMEED, AGED 42 YEARS, KALLEPPURATH HOUSE, VALAPPIL, PALLIKKAL P.O., MALAPPURAM DISTRICT.

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BY ADV. SRI.U.K.DEVIDAS

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE,THENHIPPALAM POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.

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2 VICTIM.

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3 SUHRABI, W/O.RAHIM ABDUL HAMEED, AGED 34 YEARS, KALLEPPURATH HOUSE, VALAPPIL, PALLIKKAL P.O, MALAPPURAM DISTRICT, PIN-673 653.

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R1-2 BY ADV. SRI.PRINSUN PHILIP

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OTHER PRESENT:

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SRI.AMJAD ALI, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.1638 OF 2018

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ALEXANDER THOMAS, J .

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Crl.M.C.No.1638 Of 2018

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Dated this the 24^th day of October, 2019.

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O R D E R

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The prayers in the Criminal Miscellaneous Case filed under the enabling provisions under Sec.482 of the Code of Criminal Procedure is for quashment of the impugned Anx-II final report in Crime No.203/2016 of Thenhippalam Police Station, which led to the institution of S.C.No.709/2016 on the file of Additional Sessions Court-I, Manjeri, on the ground of settlement arrived between the petitioner accused and 2^nd respondent-defacto complainant (victim).

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Heard Sri.U.K.Devidas, learned counsel for the

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petitioner-accused, Sri.Amjad Ali, learned Prosecutor appearing for 1^st respondent-State of Kerala and Sri.Prinsun Philip, learned counsel appearing for respondents 2 & 3 (victim and her mother).

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The petitioner is the sole accused in the instant Crime No.203/2016 of Thenhippalam Police Station, which has been registered for offence punishable under Sec.376 of the I.P.C, Secs.5 & 6 of the Protection of Children from Sexual Offences Act (POCSO) and Sec.75 of the Juvenile Justice (Care and Protection of Children)

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Crl.MC.No.1638 OF 2018

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Act. The Investigating Officer, after completing the investigation has filed Anx-II Final Report in Crime No.203/2016 of Thenhippalam Police Station, which led to the institution of S.C.No.709/2016 on the file of Additional Sessions Court-I, Manjeri.

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The brief of the prosecution allegation is that the petitioner-accused, who is the father of the minor victim girl, had sexually harassed the minor daughter.

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It is now submitted that the the matter has been settled between the parties and the mother of the victim girl has sworn to an affidavit stating that she has settled all the disputes with the petitioner and that continuation of the above proceedings would be detrimental to the future life of the minor victim girl and this Court may quash the impugned proceedings in view of the settlement arrived at between the petitioner and respondents 2 & 3.

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It is by now well established by a catena of rulings of the Apex Court and various High Courts including this Court that even non compoundable offences, which emanates from commercial disputes, could be quashed by this Court in exercise of inherent extra ordinary powers under Sec.482 of the Cr.P.C on the basis of settlement between the accused and defacto complainant such

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Crl.MC.No.1638 OF 2018

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approach for quashment on the ground of settlement should not be resorted to by the High Courts especially in cases involving grave and heinous crimes like dacoity, rape, corruption of charges under the PC Act, etc. Recently a 3 Judge Bench of the Apex Court in the judgment dated 5.3.2019 rendered in a Criminal Appeal has dealt with various issues and dimensions of the cases arising out of quashment of the criminal proceedings on the ground of settlement between the parties and has held that extra ordinary inherent powers conferred under Sec. 482 of the Cr.P.C is to be exercised for deserving cases and even if such cases are not compoundable, if disputations lie within the arena of civil, commercial disputes, etc., then such discretion could be exercised. But that, for grave and heinous crimes, the extra ordinary power conferred under Sec.482 of the Cr.P.C is not to be invoked etc.

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Further it has been held by the Apex Court and various High Courts including this Court that offence under Sec.376 IPC (rape) may not be amenable for quashment on the ground of settlement between the petitioner-accused and the lady defacto complainant as the offence of rape is not merely one committed against the lady victim but as against the community at large as it is an offence directed against womanhood. {see Shimbhu & Anr. v.

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Crl.MC.No.1638 OF 2018

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State of Haryana [2014 (13) SCC 318], Parbatbhai Aahir v. State of Gujarat [ ( 2017) 9 SCC 641], Anita Maria Dias v. State of Maharashtra [(2018) 3 SCC 290], Sebastian @ Solly v. State of Kerala [2015 (1) KLJ 384, etc.}. Hence it will not be right and proper for this court to consider the plea for quashment of the present impugned criminal proceedings which involve grave and heinous offence under Sec.376 of the IPC for quashment on the ground of settlement between the accused and the victim. However, it is made clear that the observations and findings made by this Court hearinabove are only from the limited compass as to whether the plea for quashment on the ground of settlement is to be allowed, in the facts and circumstances of this case. It is made clear that the above said findings and observations made by this Court will not in any manner fetter or prejudice any of the contentions advanced by the petitioner in appropriate proceedings at the time of trial or in any other appropriate proceedings involving the present crime.

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With these observations and directions, the above Criminal Miscellaneous Case Stands dismissed.

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Sd/ALEXANDER THOMAS, Judge.

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bkn/-

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Crl.MC.No.1638 OF 2018

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APPENDIX