Allowed

Vimal M.Nair v. the State of Kerala

Kerala HC5 Sept 2019Crl.MC/3080/2016

Case brief

AI extract

What is this about?

The Kerala High Court considers a petition to quash FIRs for rape and POCSO offences. While noting the general bar on quashing serious sexual offences via settlement, the Court holds that an exception applies when the accused has married the victim. Consequently, the FIRs against four accused are quashed to protect the marital life and welfare of the complainant.

What did the court decide?

The impugned FIR in Crime No. 983/2015 and all further proceedings taken in pursuance thereof against all accused will stand quashed.

Vimal M.Nair Vs the State of Kerala — Quashing and FIR | 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 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941

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Crl.MC.No.3080 OF 2016

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CRIME NO.983/2015 OF CHITTAR POLICE STATION, PATHANAMTHITTA

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PETITIONERS/ACCUSED 1 TO 4:

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1 VIMAL M.NAIR AGED 24 YEARS, S/O.MADHUSOODANAN NAIR, RESIDING AT SREEKRISHNA VILASAM, PAMPINI P.O, CHITTAR VILLAGE, RANNI TALUK, PATHANAMTHITA 689 663.

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2 DINESH K.D AGED 34 YEARS, S/O.LATE DIVAKARAN, RESIDING AT KRISHNA VILASAM, PAMPINI P.O, CHITTAR VILLAGE, RANNI TALUK, PATHANAMTHITTA 689 663.

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3 SUMESH E.S

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AGED 25 YEARS, S/O.SURENDRAN, RESIDING AT ELAVUMKAL HOUSE, PAMPINI P.O, CHITTAR VILLAGE, RANNI TALUK, PATHANAMTHITTA 689 663.

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4 RENJU M.R AGED 25 YEARS, S/O.REGHUNATHAN, RESIDING AT MAILAMOOTTIL, KARINILAM P.O, PULIKKUNNU, MUNDAKAYAM, KOTTAYAM

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BY ADV. SRI.MANU RAMACHANDRAN

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RESPONDENTS/STATE & DE FACTO COMPLAINANT:

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1 THE STATE OF KERALA THROUGH DEPUTY SUPERINTENDENT OF POLICE, PATHANAMTHITTA POLICE STATION, PATHANAMTHITTA DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERLA, ERNAKULAM.

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2 SUJATHA, AGED 45 YEARS W/O.RATNAKARAN, RESIDING AT CHARIVU PATHALILVEEDU, PAMBINI P.O, CHITTAR VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT-689 663.

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Crl.M.C. No.3080 of 2016

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3 AKHILA, AGED 19 YEARS W/O.VIMAL M.NAIR, RESIDING AT SREEKRISHNA VILASOM VEEDU, PAMBINI P.O, CHITTAR VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT 689 663.

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SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R1, SRI.BIJITH S.KHAN FOR R2 AND R3

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C. No.3080 of 2016

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ALEXANDER THOMAS, J.

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= = = = = = = = = = = = = = = = = Crl.M.C. No.3080 of 2016

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 05^th day of September, 2019

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O R D E R

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Petitioners herein have been arrayed as accused Nos.1 to 4 in the impugned Anx-AI FIR in Crime No.983/2015 of Chittar Police Station, Pathanamthitta district, which has been registered for offences punishable under Secs.376 & 366A of the Indian Penal Code and Secs.3 & 4 of the POCSO Act, Sec.3(1)(xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and Sec.57(1) of the Kerala Police Act.

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Heard Sri.Manu Ramachandran, learned counsel appearing for the petitioners, Sri.Amjad Ali, learned Public Prosecutor appearing for the 1^st respondent and Sri.Bijith S.Khan, learned counsel appearing for the 2^nd respondent/de facto complainant and the 3^rd respondent.

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The prosecution case is that the 3^rd respondent was induced by the 1^st petitioner/accused No.1 and he has taken her to various places and had sexual intercourse with her, on an assurance that he will marry the 3^rd respondent and the petitioners 2 to 4 have aided the 1^st petitioner in

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Crl.M.C. No.3080 of 2016

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committing those offences.

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It is submitted by the learned counsel for the petitioners that the petitioners did not commit any offences or did any acts as alleged by the de facto complainant or police. It is submitted that the above mentioned FIR was registered due to some misunderstandings. It is also submitted that the above mentioned FIR was registered when the 2^nd respondent's daughter, the 3^rd respondent herein, went missing and on the mistaken belief that she was induced from her lawful custody by the petitioners and the 1^st petitioner committed rape on her after giving promise to marry. It is now realised that she voluntarily went with the 1^st petitioner and she in tact forced him to take her along with him by threatening that otherwise she will commit suicide and also on her affirmation about her attaining majority. Now it is stated that the 1^st petitioner has married the 3^rd respondent defacto complainant on 28.12.2015, as evident from Anx.-A3 Marriage Certificate. It is also stated that now the petitioners and the 2^nd respondent defacto complainant have resolved their disputes and the 2^nd respondent and the petitioners have sworn to Anxs.-A4 & A5 affidavits before this Court stating that the matter is settled between them and that she is no longer interested to proceed further with the impugned criminal proceedings and since the defacto

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complainant has married the 1^st petitioner, it is highly imperative that the impugned criminal proceedings are terminated by quashment of the same in view of the settlement, as otherwise her marital life would be detrimentally affected, etc.

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It is by now well settled that grave and serious offences as the one under Sec.376 (rape) of the I.P.C cannot be the subject matter of quashment of the impugned criminal proceedings on the ground of settlement between the accused and the victim. {see Shimbu & Anr. V. 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.}. However, this Court has held in various decisions including the one as in Freddy @ Antony Francis & Ors. v. State of Kerala & Anr . [2017 KHC 344 = 2018(1) KLD 558] that the exception to the above approach could be in cases where the accused has married the 3^rd respondent and they have decided to settle all the disputes and for the predominant purpose of the welfare of the victim, to ensure her better future life, it is only just and proper that this Court in exercise of the extra ordinary inherent powers under Sec.482 of the Cr.P.C could quash the impugned criminal proceedings on the ground of settlement between

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Crl.M.C. No.3080 of 2016

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the parties in cases where the accused has married the defacto complainant and the defacto complainant is insisting for quashment of the impugned criminal proceedings, etc.

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In the light of the abovesaid aspects, more particularly, in the light of the abovesaid submission made on behalf of the 2^nd respondent defacto complainant, this Court is inclined to consider the plea for quashment of the impugned criminal proceedings, as otherwise it will detrimentally affect the family life of the 3^rd respondent. Accordingly, it is ordered that the impugned Anx-AI FIR in Crime No.983/2015 of Chittar Police Station, Pathanamthitta district and all further proceedings taken in pursuance thereof as against all the accused will stand quashed.

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Petitioners will produce certified copies of this order to the Investigating Officer concerned and the competent court below concerned. Office of Advocate General will forward copy of this order to the Investigating Officer concerned, for necessary information.

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With these observations and directions, the above Crl.M.C stands finally disposed of.

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Sd/ALEXANDER THOMAS JUDGE

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vgd

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Crl.M.C. No.3080 of 2016

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 THE TRUE COPY OF THE FIR IN CRIME NO.983/2015 OF CHITTAR POLICE STATION, PATHANAMTHITTA ANNEXURE A2 THE TRUE COPY OF THE SSLC CERTIFICATE WITH REG. NO.180623 OF THE 3RD RESPONDENT ANNEXURE A3 THE TRUE COPY OF THE MARRIAGE CERTIFICATE NO.54/2015 DATED 28.12.2015 ANNEXURE A4 THE ORIGINAL OF THE AFFIDAVIT SWORN BY THE 2ND RESPONDENT DATED 22.5.2016 ANNEXURE A5 THE ORIGINAL OF THE AFFIDAVIT SWORN BY THE 3RD RESPONDENT DATED 22.5.2016

Vimal M.Nair v. the State of Kerala

Case brief

What is this about?

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Vimal M.Nair v. the State of Kerala

Case brief

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