Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE M.R.ANITHA FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943 CRL.MC NO. 1524 OF 2021 CRIME NO.262/2018 OF CHEVAYUR POLICE STATION, KOZHIKODE DISTRICT. PETITIONERS/ACCUSED NO. 1 TO 4: 1 A AGED 1 YEARS X 2 B X 3 C X 4 D X BY ADVS. SRI.DEEPAK RAJ SMT.C.P.ROOPA RESPONDENTS/STATE & DEFACTO COMPLAINANT : 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. 2 X X OTHER PRESENT: PP SR.RENJIT GEORGE,SR GP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER
Dated : 29th October, 2021
1. This Crl.M.C has been filed seeking to quash the entire proceedings
against th petitioner in Crime No.262/2018 of Chevayur police station which is registered for the offence punishable under Sections 323, 324, 406, 376 r/w 34 IPC.
2. It is alleged that on 28.12.2016, accused took the de facto
complainant from her house pretending love and making her believe that the 'nikah' was solemnised under the customary law and had sexual intercourse with her at his house. It is also alleged that he has misappropriated 15 sovereigns of gold ornaments for his own use and thereby the accused committed the offence afore.
3. According to the learned counsel for the petitioner, petitioner
produced Annexure-A1 which is the copy of the FIR in the above crime. It is also contended that the first accused had already filed O.P.747/2018 before the Family Court, Kozhikode for restitution of conjugal rights and the second respondent also filed O.P.86/2019 before the Family Court, Kozhikode, for declaring the marriage as null
and void. Both parties were sent for mediation and the entire issues
have been settled in mediation and now they are living together as husband and wife. She has filed Annexure-II affidavit stating about the settlement arrived at between the parties.
4. Adv. Rahul appeared on behalf of the de facto complainant and reports about the settlement arrived at between the parties.
5. The learned Public Prosecutor produced, copy of the report of the
SHO, along with copy of the statement of the de facto complainant. In Annexure-II affidavit as well as in the statement given to SHO, the de facto complainant narrated about the cases pending before the Family Court and subsequent settlement of cases in mediation. It is further categorically stated that the allegation in the above crime has been solved and she has no objection in quashing the entire proceedings against the petitioner.
6. It has been contended by the learned counsel for the petitioner that
the petitioner actually married the de facto complainant on 28.12.2016 and they have been living together as husband and wife and only out of some sudden quarrel, she left the matrimonial home and thereafter at the instance of her parents this complaint happened to be filed. In the affidavit sworn in by the de faco complainant also, she has reiterated that the reason for filing the complaint was that during the course of altercation, petitioner herein told her that their marriage was not valid. In such circumstances, she was forced to file the complaint. So the parties are actually husband and wife. They are now living together.
7. In Ashiq v. State of Kerala (2019 (2) KLT 1130) this Court had an
occasion to consider an identical situation and held that when parties have amicably settled the matter and the petitioner married the victim girl, for the ends of substantial justice, it will be necessary to quash the proceedings.
8. A learned Single Judge of this Court in Denu P.Thampi v. Ms.X and
Another (2019 (3) KHC 199) also had occasion to consider a situation, where a case involving 376 of IPC, has to be quashed in view of the subsequent settlement and marriage between the victim and the accused.
9. In Saju.P.R. V.State of Kerala (Crl.Appeal No.1740/2019) Apex Court
while considering an identical situation of a case involving Section 376 IPC it has been held that on the basis of affidavit filed by the complainant and other materials on record, it would be proper to quash the criminal proceedings pending against the accused for doing complete justice to the parties and accordingly a Crl.M.C which was dismissed by this Court on the ground that the offence involved is one under Sectin 376 IPC was ultimately allowed by the Apex Court.
10. In merit also fact situation would go to show that petitioner and
defacto complainant are husband and wife andthey had been living togher. So the offence under Section 376 IPC will not prima facie attract against the petitioner.
11. In the result, Crl.M.C allowed. The entire proceedings against the petitioner in Crime No.262/2018 of Chevayur police station is hereby quashed. Sd/- M.R.Anitha, Judge Mrcs/29.10. APPENDIX PETITIONERS EXHIBITS : ANNEXURE I: A TRUE COPY OFTHE FIRST INFORMATION REPORT IN CRIME NO.262/2018 OF CHEVAYUR POLICE STATION, KOZHIKODEDISTRICT. ANNEXURE II- AFFIDAVIT HAS SWORN BY THE 2ND RESPONDENT/DEFACTO COMPLAINANT DATED 5.3.2021 RESPONDENTS EXHIBITS : NIL. TRUE COPY PS TO JUDGE