Kerala High Court
Aliyar @ Bava vs State Of Kerala on 12 November, 2008
Author: R.Basant
Bench: R.Basant
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4205 of 2008()
1. ALIYAR @ BAVA, S/O.BAVA, AGED 58 YEARS,
... Petitioner
2. ABDUL RAHUMAN, AGED 37 YEARS,
3. MAYIN KUTTI, AGED 38 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. SHAJITHA, AGED 30 YEARS,
For Petitioner :SRI.V.V.RAJA
For Respondent :SMT.SIMLA PRABHAKARAN
The Hon'ble MR. Justice R.BASANT
Dated :12/11/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 4205 of 2008
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Dated this the 12th day of November, 2008
ORDER
The petitioners face indictment in a prosecution under Section 376 I.P.C. The facts of the case appear to be weird and bizzare. The second accused is the husband of the victim woman. The third accused is a friend of the second accused. The wife allegedly had some ailments. Under the pretext of getting her treated for such ailment, the wife, who is arrayed as the second respondent in this petition, was taken by accused 2 and 3 to the house of the first accused, who allegedly claimed magical power for treatment. It is alleged that with the consent and connivance of accused 2 and 3, the first accused under the guise of treating the victim/second respondent committed rape on her. She was bewildered. She did not anticipate such a treatment. When she went back to her Crl.M.C. No. 4205 of 2008 -: 2 :- house, she shared her experience with her relatives. It is at their initiative that the complaint was filed and investigation commenced. Investigation is complete. Final report has already been filed. Cognizance has been taken. Sessions case has been registered.
2. At this stage all the three petitioners along with the second respondent came before this Court to report to the Court that the disputes between them have been settled and the second respondent has compounded the offences allegedly committed by the petitioners. It is prayed that the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. may be invoked in the interests of justice to bring to premature termination the prosecution against the petitioners.
3. The offence is not compoundable. But the counsel for the petitioners and the second respondent pray that the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. as enabled by the dictum in Madhan Mohan Abbot v. State of Punjab (2008 AIR SCW 2287); Nikhil Merchant v. C.B.I. (2008 (3) KLT 769 (SC)) and Manoj Sharma v. State (2008 (4) KLT 417 (SC)) may be invoked to bring to premature termination such unnecessary and meaningless continuance of the prosecution against the petitioners.
Crl.M.C. No. 4205 of 2008 -: 3 :-
4. Notice was given to the Prosecutor, who vehemently opposes the application. The learned Prosecutor submits that the simple and mere fact that the unfortunate wife/victim has now been persuaded to state before court that she has no grievance may not be taken seriously by this Court to bring to premature termination such prosecution for offences committed by the petitioners. This may not be reckoned as a private and personal dispute between the petitioners and the second respondent. At any rate, there is absolutely no necessity or justification in the prayer to invoke the extra ordinary inherent jurisdiction under Section 482 Cr.P.C., submits the learned Prosecutor.
5. The Case Diary has been placed before me. I have perused the same. I have considered all the relevant inputs. I am not persuaded to agree that this is a fit case where the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. can or ought to be invoked in favour of the petitioners. The offence alleged is a very grievous and serious one. Matrimonial trust has been betrayed by the 2nd accused. The alleged act of the 2nd respondent of having fatalistically accepted her fate now is no reason for the court to invoke the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. It would be a traversity of Crl.M.C. No. 4205 of 2008 -: 4 :- justice if this Court were now to invoke the jurisdiction under Sec.482 Cr.P.C. and give up the endeavour to ascertain truth by premature termination the proceedings against the petitioners.
6. Powers under Sec.482 Cr.P.C. are to be invoked only under exceptional circumstances and that too in the interests of justice. An offence under Sec.376 IPC is not compoundable. It is one of the grave offences for which severe punishment is prescribed in the Penal Code. The simple fact that the 2nd respondent, who continues in matrimony with the 2nd accused and has three children in such wed-lock, is pressured by circumstances to compound the offence against the petitioners cannot weigh with me as a sufficient reason to invoke the jurisdiction under Sec.482 Cr.P.C. It is true that the decisions in Madhan Mohan Abbot ; Nikhil Merchant and Manoj Sharma (supra) have held that composition of non- compoundable offences can be reckoned as a relevant input while considering the prayer for quashing of prosecution under Sec.482 Cr.P.C.; but it is not the law that as soon as the victim comes before the court and submits that she has no objection and has compounded such an offence, the prosecution deserves to be quashed whatever the nature of the offence. I am not, in these circumstances, persuaded to invoke the extraordinary Crl.M.C. No. 4205 of 2008 -: 5 :- inherent jurisdiction under Sec.482 Cr.P.C. I have already adverted to the care and caution which must be employed by the courts before invoking the dictum in Madhan Mohan Abbot v. State of Punjab (2008 AIR SCW 2287). In the decisions in Santhosh Kumar v. State of Kerala (2008 (3) KLT 240) and Babeesh Babin Kumar v. S.I. of Police (2008 (3) KHC 713). Conscious of the principles applicable, I find it impossible to invoke such jurisdiction in this case.
7. This Crl.M.C. is, in these circumstances, dismissed.
Sd/-
(R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 4205 of 2008 -: 6 :-