Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUESDAY, THE 29TH DAY OF SEPTEMBER 2020 / 7TH ASWINA, 1942 Crl.MC.No.2113 OF 2020(D) IN CP 48/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I , KAYAMKULAM CRIME NO.1255/2019 OF Kayamkulam Police Station, Alappuzha PETITIONER/ACCUSED: SHAJAHAN AGED 40 YEARS S/O. IBRAHIMKUTTY, NEDUMPALLIL VEEDU, PERINGHALA MURI, KAYAMKULAM VILLAGE, ALAPPUZHA DISTRICT, PIN-690 537. BY ADVS. SRI.M.REVIKRISHNAN SRI.AJEESH K.SASI SRI.P.M.RAFIQ SRI.THOMAS J.ANAKKALLUNKAL SRI.V.C.SARATH SRI.VIPIN NARAYAN SRUTHY N. BHAT RESPONDENT/DEFACTO COMPLAINANT & STATE: 1 VICTIM 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT P.O., ERNAKULAM-682 031. R1 BY ADV. VISHNU BABU SRI.B.JAYASURYA, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ALEXANDER THOMAS, J.
======================= Crl.M.C.No. 2113 of 2020 ======================= Dated this the 29th day of September, 2020
ORDER
The prayer in the above Crl.M.C filed under Section 482 of the Cr.P.C is as follows:
“ …........to allow this Criminal Miscellaneous Case and to quash Annexure B Final Report and all further proceedings in Crime No.1255/2019 of Kayamkulam Police Station, Alappuzha District and now pending as C.P.No. 48 of 2019 on the file of the Judicial First Class Magistrate Court-I, Kayamkulam, as against the petitioner, so as to secure the ends of justice.”
2. The petitioner herein is arrayed as the sole accused in Crime
No.1255/2019 of Kayamkulam Police Station, Alappuzha District for offences punishable under Section 452, 354 A (3), 506(i) ,511 of 376 of the Indian Penal Code on the basis of the First Information Statement given by the 1st respondent (victim) on 03.05.2019 at about 9.00 p.m. The alleged incident is happened on 03.05.2019 at about 1.00 p.m. The police
after investigation has filed the impugned Annexure-B Final Report/Charge Sheet in Annexure-A Crime No.1255/2019 of Kayamkulam Police Station, which is now pending as C.P.No.48/2019 on the file of Judicial First Class Magistrate Court-I, Kayamkulam. The petitioner
would seek for quashment of the impugned criminal proceedings mainly on the ground that the offence as per Section 511 of IPC is not made out in this instant case, and that the other offences are also not very grave, and further that now the entire disputes between the petitioner and the 1 st respondent/defacto complainant had duly settled and that the 1 st respondent has now filed Annexure C affidavit dated 04.03.2020 before
this Court, stating that she has no further grievance and that the impugned criminal proceedings against the petitioner may be quashed on the ground of settlement between the parties, and that continuance of the impugned criminal proceedings in the instant case against the petitioner will remain as unnecessary irritant in the light of the case of the 1st respondent etc.
3. Vital ingredients disclosing the offence as per Section 511 of
Section 376 of IPC (attempt to commit) has been dealt with by the Apex Court by a series of case as in Aman Kumar & another Vs. State of Haryana [AIR 2004 SC 1497], paragraphs 8 to 11 thereof, wherein it has been inter alia held that an attempt to commit an offence is an act or a series of act, which leads inevitably to the commission of the offfence, unless something which the doer of the act either foresaw nor intended, happens to prevent this. In order to hold that the accused is guilty of the
offence (attempt to commit rape) as per Section 511 and 376 of IPC, whereas the Court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desire to gratify his passions upon her person but that he intended to do so all events, notwithstanding any resistance on her part, and indecent assault are often magnified into attempt at rape. In
order to come to a conclusion that the conduct of the accused was
indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist, and surrounding circumstances may times throw beacon light on that aspect etc.
4. It is profitable to refer to the legal position laid own by the Apex Court in Paragraphs 8 to 11 of the judgment in Aman Kumar & another Vs. State of Haryana [AIR 2004 SC 1497] reads as follows:-
“8. The plea relating to applicability of Section 376 read with Section 511, IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempts successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death an attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.
9. A culprit first intends to commit the offence, then
makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word 'attempt' is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
10. An attempt to commit an offence is an act, or a
series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual
commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly shows the legislative intention to make a difference between the cases of a mere preparation and an attempt.
11. In order to find an accused guilty of an attempt with
intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspects.”
5. On going through the impugned criminal proceedings more
particularly Annexure-A First Information Statement, it is seen that the main allegations made therein are to the effect that petitioner/accused had come to her residence for the purpose of preparing of the water purifier and that later he had asked for a glass of water, and when the lady had gone to collect it, the petitioner had removed his dress, and asked her to undress herself and that he had grabbed her hands, and he has shown her obscene video pictures in his mobile cell. At that point of time, the 1 st respondent had rushed out of the house and gone to the neighbouring house, and then the petitioner had uttered that is she discloses the said incident she will face bad consequences etc. Going by the tone and tenor of allegations raised in the impugned criminal proceedings, it is seen that
serious offence of attempt to commit rape as per Section 511 of IPC is not made out as the vital ingredients thereof are not seriously disclosed. Therefore, at best the prosecution may allege a case of outraging the modesty of the 1st respondent lady defacto complainant so as to constitute the offence as per Section 354 of the IPC. The other offences are alleged in the instant case are those punishable under Section 452 of the IPC which deals with scenario of house trespass and allied incidents, and alleged
incidents showing Section 354 A(3) pornography and Section 506(i) criminal intimidation. Now it is stated that the dispute between the petitioner and the 1st respondent has been settled as can be seen from reading of Annexure C affidavit sworn to by the 1 st respondent on 04.03.2020. The learned Public Prosecutor was also requested to get instructions in the matter from the Investigating Officer concerned, and today when the matter was come up for consideration the learned Public Prosecutor submit that the Investigating Officer conducted and enquiry, the statement of the 1st respondent lady defacto complainant has been taken which disclosed that she has voluntarily entered to settlement in this case, and voluntarily sworn to Annexure C affidavit etc..
6. In a catena of decisions, the Apex Court has held that, in appropriate cases involving even non-compoundable offences, the High
Court can quash prosecution by exercise of the powers under Sec.482 of the Cr.P.C., if the parties have really settled the whole dispute or if the continuance of the prosecution will not serve any purpose. Here, this Court finds a real case of settlement between the parties and it is also found that continuance of the prosecution in such a situation will not serve any purpose other than wasting the precious time of the court, when the case ultimately comes before the court. On a perusal of the petition and on a close scrutiny of the investigation materials on record and the affidavit of settlement and taking into account the attendant facts and circumstances of this case, this Court is of the considered opinion that the legal principles laid down by the Apex Court in the cases as in Gian Singh v. State of Punjab reported in 2013 (1) SCC (Cri) 160 = (2012) 10 SCC 303 and Narinder Singh and others v. State of Punjab and anr. reported in (2014) 6 SCC 466, more particularly paragraph 29 thereof, could be applied in this case to consider the prayer for quashment.
7. Going by the parameters laid down by the Apex Court and this
Court regarding quashment of offences on the ground of settlement, this Court is of considered view that the impugned criminal proceedings involving the above said offences in this case should be considered for quashment on the basis of settlement between the parties.
7. The offences disclosed in this case are mainly those as in
Section 354, 354 A(3), 452 and 506 (i) of the IPC. Since already noted by this Court herein above as the offences as per Sections 511 of IPC is not disclosed, and at best the offence as per 354 of the IPC (outraging the modesty of a women) may be disclosed in view thereof. Accordingly, the offences that are disclosed in the instant case are those as per Section 354, 354 A(3), 452 and 506(i) of the IPC.
8. On being queried as to whether the petitioner/accused has any
criminal antecedents, it is submitted that based on the enquiry conducted by Investigating Officer, it is seen that petitioner may not be involved in any other crime in that Police Station.
9. The learned counsel for the 1st respondent the clearly stated in
Annexure C affidavit that the continuance of the impugned criminal proceedings further may cause unnecessary irritant and difficulties to the 1st respondent and that the 1st respondent interest may be better save by quashment of the impugned criminal proceedings etc. Taking note of the submissions of both sides, this Court is of considered view that the plea for quashment on the ground of settlement to be considered by this Court. Accordingly, it is ordered that the impugned Annexure B Final
Report/Charge Sheet filed in impugned Annexure A FIR in Crime No.1255/2019 of Kayamkulam Police Station, which has now led to the pendency of C.P.No.48/2019 on the file of Judicial First Class Magistrate Court-I, as against the petitioner/accused and all criminal proceedings as against the petitioner/accused will stand quashed and set aside.
The petitioner will produce the certify copy of this order before the Judicial First Class Magistrate Court-I , Kayamkulam, as well as the Investigating Officer concern for necessary information and further action.
With these observations and directions, the above Criminal Miscellaneous case will stand finally disposed of. Sd/- ALEXANDER THOMAS JUDGE VPK APPENDIX PETITIONER'S/S EXHIBITS: ANNEXURE A TRUE COPY OF THE F.I.R AND F.I.S IN CRIME NO.1255/2019 OF KAYAMKULAM POLICE STATION, ALAPPUZHA DISTRICT (IN A SEALED COVER). ANNEXURE B TRUE COPY OF THE FINAL REPORT IN CRIME NO.1255/2019 OF KAYAMKULAM POLICE STATION, ALAPPUZHA DISTRICT (IN A SEALED COVER). ANNEXURE C AFFIDAVIT SWORN TO BY THE VICTIM SIGNIFYING THE FACTUM OF SETTLEMETN OF DISPUTES BETWEEN THE PARTIES (IN A SEALED COVER).