Allowed

Sajidh Shaji v. State of Kerala

Kerala HC11 Oct 2023Crl.MC/1513/2021

Case brief

AI extract

What is this about?

In this Criminal Misc. Case, the High Court quashed proceedings against the accused under Section 376 IPC. The court held that since the petitioner and victim were married and living happily, the allegations lacked rape elements and the process was not being abused.

What did the court decide?

Crl.M.C allowed; all further proceedings in Crime No.89 of 2021 are quashed against the petitioner.

Sajidh Shaji Vs State of Kerala — Quashing and FIR | Kerala HC (2023)

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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 GOPINATH P.

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WEDNESDAY, THE 11TH DAY OF OCTOBER 2023 / 19TH ASWINA, 1945

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CRL.MC NO. 1513 OF 2021

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CRIME NO.89/2021 OF KAZHAKUTTAM POLICE STATION, THIRUVANANTHAPURAM DISTRICT

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PETITIONER/ACCUSED:

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SAJIDH SHAJI,
AGED 21 YEARS,
S/O. SHAJI Y.S, S.M. COTTAGE, STRA 90, VETTUROAD,
KAZHAKUTTOM, MENAMKULAM PART,
THIRUVANANTHAPURAM DISTRICT.

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BY ADV SHAJIN S.HAMEED

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RESPONDENTS/STATE & DEFACTO COMPLAINANT (VICTIM):

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2 XXXXXXXXXXXXX XXXXXXXXXXXXX

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BY ADV ANUSHMA M.KHAN

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SRI VIPIN NARAYAN (SR. PP)

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
11.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 1513 OF 2021

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ORDER

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The petitioner is the accused in Crime No.89 of 2021 of Kazhakuttam Police Station, Thiruvananthapuram District, alleging commission of offences under Section 376(2)(n), 370 and 366 of the Indian Penal Code. The allegation against the petitioner is that on 16.06.2019, the petitioner and the victim, who were classmates had travelled together to Trivandrum and at Trivandrum, the petitioner took the victim to his house and committed rape on her and thereby he committed the aforesaid offences.

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The learned counsel appearing for the petitioner would submit that the petitioner and the victim are now married and are living together as husband and wife. Reference is made in this regard to Annexure – B marriage certificate. It is submitted that considering the above, it would only be appropriate that the proceedings against the petitioner in Crime No.89 of 2021 of Kazhakuttam Police Station be quashed. Reference is also made to Annexure – C affidavit executed by the victim to show that she does not intend to prosecute the

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CRL.MC NO. 1513 OF 2021

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complaint in any manner.

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Heard the learned Public Prosecutor also.

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4. In Pramod Suryabhan Pawar v. State of Maharashtra

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and Another ; [(2019) 9 SCC 608], the Supreme Court considered the scope of the power exercised by this Court under Section 482 of the Code of Criminal Procedure and held in paragraph Nos.6 and 7 as under;

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“ 6. Section 482 is an overriding section which saves the inherent powers of the court to advance the cause of justice. Under Section 482 of the inherent jurisdiction of the court can be exercised (i) to give effect to an order under Cr.P.C.; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise secure the ends of justice. The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. These principles have been consistently followed and reiterated by this Court. In Inder Mohan Goswami v. State of Uttaranchal, this Court observed; (SCC p.10, paras 23-24)

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“23. This Court in a number of cases has laid down the scope and ambit of courts’ powers under Section 482 Cr.P.C. Every High Court has inherent powers to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of

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CRL.MC NO. 1513 OF 2021

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the process of the court. Inherent power under Section 482 Cr.P.C. can be exercised:

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(i) to give effect to an order under the Code;

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(ii) to prevent abuse of the process of the court,

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and

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(iii) to otherwise secure the ends of justice.

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Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.”

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Given the varied nature of cases that come before the High Courts, any strict test as to when the court’s extraordinary powers can be exercised is likely to tie the court’s hands in the face of future injustice. This Court in State of Haryana v. Bhajan Lal conducted a detailed study of the situations where the court may exercise its extraordinary jurisdiction and laid down a list of illustrative examples of where quashing may be appropriate. It is not necessary to discuss all the examples, but a few bear relevance to the present case. The Court in Bhajan Lal noted that quashing may be appropriate where: (SCC pp.378-79, para 102)

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“102. ...(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report

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CRL.MC NO. 1513 OF 2021

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and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order a Magistrate within the purview of Section 155(2).

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(7) Where a criminal proceedings is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

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Having heard the learned counsel for the petitioner and the learned Public Prosecutor and considering the law laid down in Pramod Suryabhan Pawar (supra) , I am of the opinion that this is a case where the jurisdiction of this Court under Section 482 of the Cr.P.C can be invoked to quash the proceedings against the petitioner. The facts of the case and the contents of Annexure – C affidavit executed by the victim will indicate that the relationship between the petitioner and the victim was purely consensual and no element of rape was involved. The petitioner and the victim are now married and are living together happily as husband and wife. Annexure – B is the marriage certificate issued under the Special Marriage Act by the Marriage Officer, Kasargode indicating that the petitioner and the victim are now married and are living

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CRL.MC NO. 1513 OF 2021

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together as husband and wife. No public purpose will be served by continuing with the proceedings against the petitioner.

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Accordingly, this Crl.M.C is allowed and all further proceedings in Crime No.89 of 2021 of Kazhakuttam Police Station, Thiruvananthapuram District, will stand quashed as against the petitioner.

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Sd/GOPINATH P. JUDGE

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CRL.MC NO. 1513 OF 2021

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APPENDIX OF CRL.MC 1513/2021

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`PETITIONER ANN`	`EXURES`
`ANNEXURE A`	`CERTIFIED COPY OF THE FIR IN CRIME` `NO.89/2021 OF KAZHAKUTTAM POLICE` `STATION.`
`ANNEXURE B`	`PHOTOCOPY OF THE CERTIFICATE OF`
	`MARRIAGE DATED 27.02.2021 ISSUED BY` `THE MARRIAGE OFFICER.`
`ANNEXURE C`	`AFFIDAVIT EXECUTED BY THE 2ND` `RESPONDENT/DE FACTO COMPLAINANT.`

Sajidh Shaji v. State of Kerala

Case brief

What is this about?

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Sajidh Shaji v. State of Kerala

Case brief

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