Allowed

Binesh Ninan v. State of Kerala

Kerala HC3 Sept 2019Crl.MC/433/2019

Case brief

AI extract

What is this about?

The High Court of Kerala quashed criminal proceedings against six accused, a husband and wife among whom, in a domestic dispute involving IPC offenses including unnatural acts. The court held Section 377 IPC did not apply post-2013, citing Exception 2 to Section 375 IPC. Given settlement, proceedings were dismissed.

What did the court decide?

Impugned criminal proceedings under Crime No.759/2015 and connected cases quashed; parties directed to submit to lower court.

Binesh Ninan Vs 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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WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

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CRL.M.C.NO.433 OF 2019(D)

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CC 80/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, KOTTAYAM

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CRIME NO.759/2015 OF PAMPADY POLICE STATION, KOTTAYAM

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PETITIONERS/ACCUSED NOS.1 TO 4:

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1 BINESH NINAN, S/O.NINAN CHACKO, RESIDING AT THAYYIPARAMBIL HOUSE, POOTHAKUZHY P.O.

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2 SARAMMA NINAN, W/O.NINAN CHACKO, AGED 65 YEARS, RESIDING AT THAYYIPARAMBIL HOUSE, POOTHAKUZHY P.O.

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3 NINAN CHACKO, S/O.CHACKO, AGED 67 YEARS, RESIDING AT THAYYIPARAMBIL HOUSE, POOTHAKUZHY P.O.

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4 BIBIN NINAN, S/O.NINAN CHACKO, RESIDING AT THAYYIPARAMBIL HOUSE, POOTHAKUZHY P.O.

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BY ADV. SRI.P.C.HARIDAS

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RESPONDENTS/STATE-COMPLAINANT:

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1 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM 682 031.

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2 THE SUB INSPECTOR OF POLICE, PAMPADY POLICE STATION, PAMPADY - 686 502.

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3 PINGLE M.PAULSON, D/O.M.J.PAULSON, THAYYILPARAMBIL HOUSE, POOTHAKUZHY P.O., CHENNAMPALLY, PAMPADY VILLAGE, KOTTAYAM TALUK - 686 521.

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SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1 & R2 SRI.C.A.CHACKO, ADVOCATE FOR R3.

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.02.2020 ALONG WITH CRL.M.C.NO.923/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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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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WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

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CRL.M.C.NO.923 OF 2017

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CC 80/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, KOTTAYAM

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CRIME NO.759/2015 OF PAMPADY POLICE STATION, KOTTAYAM

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PETITIONERS/ACCUSED:

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1 PAUL VARGHESE, AGED 67 YEARS, S/O. IYPE VARGHESE, EATICKAL PUTHANPURAYIL, VELLOOR P.O, PAMBADY, KOTTAYAM DISTRICT.

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2 JOSEPH FRANCIS, AGED 58 YEARS, S/O. FRANCIS, PULLIKUNNEL HOUSE,PERUMBAIKAD VILLAGE, PARAMPUZHAKKARA, KOTTAYAM DISTRICT.

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BY ADVS.SRI.R.UMASANKAR,SRI.MANOJ B.MENON

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RESPONDENTS:

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1 PINGLE M.PAULSON, AGED 33 YEARS, D/O. M.J. PAULSON, THAYYILPARAMBIL VEEDU, POOTHAKKUZHI, CHENNAMPALLI, PAMBADY, KOTTAYAM TALUK-686502.

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2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.

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SRI.C.A.CHACKO, ADVOCATE FOR R1 SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R2

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.02.2020, ALONG WITH CRL.M.C.NO.433/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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--------------------------------------Crl.M.C. No. 433 of 2019 & Crl.M.C. No. 923 of 2017

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Dated this the 19^th day of February, 2020

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O R D E R

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The four petitioners in Crl.M.C. No. 433 of 2019 and the two petitioners in Crl.M.C. No. 923 of 2017, have been arrayed as accused Nos.1 to 6 in Crime No.759/2015 of Pampady Police Station, Kottayam District, which has been registered for offences punishable under Secs.377, 511 of 376, 403, 406, 420, 115 & 120B of the IPC, pursuant to the directions issued by the learned Magistrate on the private criminal complaint filed by the respondent lady defacto complainant. A copy of the FIR in the above crime, and a copy of the private criminal complaint in that regard have been produced as Anxs.2 & 1 respectively in Crl.M.C. No.923/2017. The Police after investigation has filed the final report/charge sheet in this case, which led to the pendency of C.C.No.80/2016 on the file of the Judicial First Class Magistrate Court-I, Kottayam. A copy of final report/charge sheet has been produced as Anx.A1 in Crl.M.C. No. 433 of 2019 and as Anx.3 in Crl.M.C. No.923/2017.

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Crl.M.C. No. 433 of 2019 & Crl.M.C. No. 923 of 2017

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..4..

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The respondent lady defacto complainant is the wife of the 1^st petitioner in Crl.M.C. No. 433 of 2019 (A1 in Crime No.759/2015 of Pampady Police Station). The 2^nd to 4^th petitioners in Crl.M.C. No. 433 of 2019 (A2 to A4 in the above crime) are the mother, father and brother respectively of the 1^st petitioner (A1). The two petitioners in Crl.M.C. No. 923 of 2017 (A5 & A6 in the above crime) are the maternal uncle of A1 and father-in-law of A4 respectively. It appears that the case has emanated out of marital discord between A1 and the lady defacto complainant. After completion of investigation, the Police have deleted the offence as per Sec.511 of 376 of the IPC as can be seen from the impugned final report/charge sheet. Offences alleged in C.C.No.80/2016 on the file of the Judicial First Class Magistrate Court-I, Kottayam, are those punishable under Secs.403, 406, 420, 377, 506(i), 498A & 34 of the IPC. The main allegations are to the effect that, after the marriage of spouses, A1 have been physically and mentally harassing the respondent lady defacto complainant, and he has compelled her to have oral sex, etc. Incidentally it is to be noted that, the respondent lady defacto complainant has also

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..5..

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Crl.M.C. No. 433 of 2019 & Crl.M.C. No. 923 of 2017

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made allegations that a foreigner who happened to be in acquaintance of the accused persons had even attempted to commit rape on her, and the offence as per Sec.511 of 376 of the IPC alleged in the FIR, which the police after investigation has found to be false and has deleted from the final report/charge sheet as mentioned herein above.

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Heard Sri.P.C.Haridas, learned counsel appearing for the petitioners in Crl.M.C. No. 433 of 2019 (A1 to A4), Sri.R.Umasankar, learned counsel appearing for the petitioners in Crl.M.C. No. 923 of 2017 ( A5 & A6), Sri.C.A.Chacko, learned counsel appearing for the respondent lady defacto complainant and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent State and Investigating Agency concerned.

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Now it is submitted by all the petitioner accused persons as well as the respondent lady defacto complainant that, the entire disputes between the parties have been resolved, and that the allegations are made by the lady defacto complainant mainly out of misunderstanding and marital discord between her and A1 (her husband), and Anx.A2 produced in Crl.M.C. No. 433 of

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..6..

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Crl.M.C. No. 433 of 2019 & Crl.M.C. No. 923 of 2017

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2019 is the compromise petition filed by the rival parties in O.P.No.198/2015 on the file of the Family Court, Ettumanoor, Kottayam. It is also pointed out that, now it has been decided that A1 and respondent lady defacto complainant will secure divorce on the basis of mutual consent, and appropriate application has also been filed before the Family Court, Ettumanoor, Kottayam, in the abovesaid O.P.No.198/2015. It is by now well established that, ordinarily a serious offence in the nature of Sec.376 of the IPC (rape) may not be amenable for quashment on the ground of settlement between the parties. {see Shimbhu & 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.}

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In the instant case, there are no allegations of rape or attempt to commit rape. In the final report as well as in the pending calender case, except the main offence, the alleged offence is one as per Sec.377 of the IPC (unnatural offence) and the allegation is that A1 had carnal intercourse against the order of

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Crl.M.C. No. 433 of 2019 & Crl.M.C. No. 923 of 2017

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nature, which the respondent lady defacto complainant who is his wife . An offence as per Sec.377 of the IPC though triable by the learned Magistrate could be broadly put at par with an offence in the nature of Sec.376 of the IPC (rape). Therefore, the restrictive approach for quashment of the offence as per Sec.376 of the IPC on the ground of settlement may could also be pressed into service, if the offence that is sought to be quashed is the one as per Sec.377 of the IPC. However, in the instant case it is to be noted that, even the allegation of attempt to commit rape made in the FIR was found thoroughly false by the Police after thorough investigation, and the offence as per Sec.511 of 376 of the IPC has been deleted from the final report/charge sheet, and the learned Magistrate has taken cognizance in the abovesaid calender case only for the offences mentioned herein above.

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Therefore, at the outset this Court has to take into account that the allegations have been made in the context of serious marital discord between the husband and the wife, which has also affected their entire family. That apart, the admitted

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Crl.M.C. No. 433 of 2019 & Crl.M.C. No. 923 of 2017

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allegation of the respondent lady defacto complainant is that, A1, who is her husband has compelled her to do oral sex, which is against the order of nature, and the said offence has been committed during the subsistence of marital relationship. This Court has dealt with similar scenario in a case in

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Vinod Thankarajan & Another v. State of Kerala & Others [2020 (1) KHC 852] , and it has been held therein that if the sexual allegations are said to have occurred after 3.2.2013, which is the date of coming into force of the amended provisions of Secs.375 & 376 of the IPC, then an allegation that a male accused has committed oral sex on the female victim, would amount to an offence of rape as per Sec.375 of the IPC, going by clause 'd' of Sec.375 of the IPC.

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7. Sec.377 of the IPC reads as follows:

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“ 377.Unnatural offences. -- Whoever voluntarily has carnal intercourse against the order or nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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Explanation.-- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

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8. Sec.375 of the IPC after the amendment made effective

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from 3.2.2013, reads as follows:

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Crl.M.C. No. 433 of 2019 & Crl.M.C. No. 923 of 2017

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“ 375. Rape. -- A man is said to commit "rape" if he--

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(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

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(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

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(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

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(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:--

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First.-- Against her will.

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Secondly.-- Without her consent.

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Thirdly.-- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

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Fourthly.-- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

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Fifthly.-- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

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Sixthly.-- With or without her consent, when she is under eighteen years of age.

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Seventhly.-- When she is unable to communicate consent. Explanation 1.-- For the purposes of this section, "vagina" shall also include labia majora.

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Explanation 2.-- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specific sexual act:

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Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

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Exception 1.-- A medical procedure or intervention shall not constitute rape.

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Exception 2.-- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

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Crl.M.C. No. 433 of 2019 & Crl.M.C. No. 923 of 2017

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Accordingly this Court has held that, in a case where such an allegation of oral sex allegedly performed by the husband on the wife has happened on or after 3.2.2013, then the offence disclosed as per the allegations would only be the one as per Sec.375 of the IPC clause 'd' thereof, and not as per Sec.377 of the IPC, so long as the incident is said to have occurred on or after 3.2.2013. Since that is the position, it has been held by this Court in Vinod Thankarajan's case supra that, since the said allegation would only disclose offence as per Sec.375 of the IPC, and if the accused and the victim are husband and wife respectively as on the date of alleged commission of act, then the case could be covered by exception No.2 of Sec.375 of the IPC, which stipulates that sexual intercourse or sexual acts said to have done by a man on his wife, the wife not being under the age of 15 years is not rape, this Court held that such an alleged act which is committed by the husband on the wife on or after 3.2.2013, then it will come under the umbrella of Clause 'd' of Sec.375 of the IPC, and at the same time it will be covered by the exception No.2 of Sec.375 of the IPC, and therefore no offence will be made out thereof. In the instant

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Crl.M.C. No. 433 of 2019 & Crl.M.C. No. 923 of 2017

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case, the specific allegation of the prosecution is that the marriage of the above spouses was held on 26.5.2013 and so the entire incidents have allegedly occurred after the amendment of Sec.375 of the IPC, on 3.2.2013.

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In view of the abovesaid dictum already settled by this Court in the decision in Vinod Thankarajan's case supra, it is only to be ordered and declared that the abovesaid acts will not disclose any prosecutable offence, for the simple reason that it is covered by exception No.2 of Sec.375. The other offences now alleged as per the impugned final report/ charge sheet are those punishable under Secs.403, 406, 420, 506(i), 498A r/w 34 of the IPC. Those are all offences which could be subject matter for quashment on the ground of settlement where the parties have arrived at bonafide settlement.

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Now the rival parties have given complete burial to the disputes and the matter has attained a quietus, and therefore permitting the impugned criminal proceedings to continue any further, may amount to abuse of process of Court, and if the cases are not quashed, then it may amount to re-igniting the old rivalries

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Crl.M.C. No. 433 of 2019 & Crl.M.C. No. 923 of 2017

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between the warring parties. Therefore, it is in the interest of justice that a decent burial is given to the disputes between the parties, to arrive at a amicable and reasonable settlement. The husband and the wife have decided to part their ways peacefully, and therefore the impugned criminal proceedings may not stand in the way and this Court is of the considered opinion that there are not legal impediments for quashment of the impugned criminal proceedings in view of the aforementioned aspects.

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In that view of the matter it is ordered that, the impugned proceedings as per the final report/charge sheet filed in Crime No.759/2015 of Pampady Police Station, Kottayam District, which has led to the pendency of C.C.No.80/2016 on the file of the Judicial First Class Magistrate Court-I, Kottayam, as against the accused persons concerned, as well as all other proceedings emanating there from as against the accused persons concerned, will stand quashed. The petitioners will produce certified copies of this order before the Judicial First Class Magistrate Court-I, Kottayam, who is dealing with C.C.No.80/2016, as well as the

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Crl.M.C. No. 433 of 2019 & Crl.M.C. No. 923 of 2017

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Investigating Officer in relation to Crime No.759/2015 of Pampady Police Station, Kottayam District, for necessary information.

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With these observations and directions, the above

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Criminal Miscellaneous Case will stand finally disposed of.

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Sd/-