Kerala High Court
Muhammed Shahabal vs State Of Kerala on 15 October, 2024
CRL.MC NO. 6790 OF 2023 1 2024:KER:77845
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 15TH DAY OF OCTOBER 2024 / 23RD ASWINA,
1946
CRL.MC NO. 6790 OF 2023
CRIME NO.67/2022 OF VANITHA POLICE STATION, MALAPPURAM,
MALAPPURAM
SC NO.18 OF 2023 OF FAST TRACK SPECIAL COURT II,
MANJERI
PETITIONER/ACCUSED:
MUHAMMED SHAHABAL
AGED 28 YEARS
S/O.MANU, KALLIYATH HOUSE, VENDALLUR, RABIYA
GROUP, VALANCHERI, MALAPPURAM, KERALA, PIN -
676572
BY ADVS.
SADCHITH.P.KURUP
C.P.ANIL RAJ
SIVA SURESH
RESHMA RAJ
RESPONDENTS/STATE & DE FACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, PIN - 682031
2 THE STATION HOUSE OFFICER
MALAPPURAM VANITHA POLICE STATION, UP HILL,
MALAPPURAM, PIN - 676505
3 XXXXXXXXXX
XXXXXXXXXX
R1 & R2 BY SR.PUBLIC PROSECUTOR SRI.RENJIT
GEORGE
R3 BY ADV.AHAMED FAZIL E.C.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 15.10.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
CRL.MC NO. 6790 OF 2023 2 2024:KER:77845
ORDER
Dated this the 15th day of October, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C. hereinafter), by the petitioner, who is the sole accused in Crime No.67/2022 of Vanitha police station, Malappuram, now pending as S.C.No.18/2023 on the files of the Fast Track Special Court-II, Manjeri and the prayer herein is as under:
To call for the records relating to SC No.18/2023 on the files of Fast Track Special Court II, Manjeri, Malappuram District and quash the same and all further proceedings pursuant to it.
2. Heard the learned counsel for the petitioner, the learned counsel appearing for the de facto complainant and the learned Public Prosecutor. Perused the relevant records.
3. Precisely, the prosecution case is that, the accused herein, who made acquaintance with the de facto complainant through Instagram, subjected the de facto CRL.MC NO. 6790 OF 2023 3 2024:KER:77845 complainant to repeated sexual intercourse starting from January 2019 till 9.8.2022, after trespassing upon her house and also taking her to a lodge in Perinthalmanna, Malappuram and Woodbine Hotel, Malappuram. She was also subjected to rape in Dubai, when she was in Dubai. Further allegation against the accused was that, he had taken nude photos and videos of the de facto complainant in his mobile phone and threatened her with dire consequences. This is the base, on which, the prosecution alleges commission of offences punishable under Sections 376(2)(n), 354D(1), 450, 366 and 506 of the Indian Penal Code.
4. While pursuing the relief of quashment of this proceedings, the learned counsel for the petitioner read out the FIS and additional statement given by the de facto complainant to substantiate that the relationship is consensual and the relationship continued after marriage of the de facto complainant with another person. It is submitted further that, when the husband of the de facto complainant detected the relationship, this case was foisted without any basis. According to the learned counsel for the CRL.MC NO. 6790 OF 2023 4 2024:KER:77845 petitioner, if the allegations are taken together, then also, the relationship is purely consensual. Further, after accompanying the accused to various places, the allegation of rape and trespass upon the house of the de facto complainant, are not believable, prima facie. Therefore, the entire proceedings would require quashment. The learned counsel for the petitioner placed a latest decision of the Apex Court in Shiv Pratap Singh Rana v. State of Madhya Pradesh reported in [2024 KLT OnLine 1784 (SC)], wherein, the Apex Court dealt with a case, as stated in paragraph No.2 as under:
2. The case of the prosecution is that the prosecutrix had lodged a first information report (FIR) on 06.09.2018 alleging that in the year 2016, the accused (appellant herein) used to show photographs of hers and telling her to come to Gwalior with him otherwise her photographs would be uploaded on Whatsapp.
It was due to fear that she came to Gwalior along with the appellant by train from Dabra. One boy from Anupam Nagar came to the railway station to receive her. On his motorbike, the prosecutrix and the appellant went to Anupam Nagar city centre where the appellant was living in rented premises. There, the CRL.MC NO. 6790 OF 2023 5 2024:KER:77845 appellant forcefully committed wrongful act on her. Thereafter, the appellant forcefully took the signature of the prosecutrix on an affidavit. It was mentioned in the affidavit that the prosecutrix would live with the appellant for life. After that she came to Dabra with the appellant and went home. Appellant used to tell her again and again about having a relationship. He told her that he would marry her after the marriage of his brother. But after the marriage of his brother when the prosecutrix broached the topic of marriage, the appellant told her that his brother had received Rs.15 lakhs in marriage; if her family would give Rs.15 lakhs then only he would marry her, otherwise not. Her parents went to the residence of the appellant with a marriage proposal but his family members turned out the proposal. In the FIR, it was alleged that the appellant while having relationship with the prosecutrix took money from her on various occasions totalling Rs.90,000/-; besides jewellery were also taken. When the appellant started threatening the prosecutrix, she filed the FIR before the Vishwavidhyalaya Police Station, District Gwalior.
While allowing quashment of the case, the Apex Court held in paragraph No.16 of the said decision as under:
CRL.MC NO. 6790 OF 2023 6 2024:KER:77845
16. From a perusal and comparison of the two statements of the prosecutrix, one before the police under Section 161 Cr.P.C. and the other under Section 164 Cr.P.C., that too recorded within a span of 24 hours, what is noticeable is that not only are the statements contradictory in themselves, those are contradictory to each other as well. The fact that the appellant had lodged the FIR two years after the alleged incident is itself suggestive of the consensual nature of the relationship which had gone sour.
It is inconceivable that the prosecutrix, who was about 22 years of age at the time of the alleged incident, would accompany the appellant to a temple if she was being threatened by the appellant. She was a major and, therefore, fully conscious of the consequences of her own actions. It is not the case of the prosecutrix that the appellant had forced her to have bath under the waterfall and thereafter took her photographs. The act of the prosecutrix having bath under the waterfall and changing her clothes thereafter in the company of the appellant virtually rules out any threat or coercion by the appellant on the prosecutrix.
In paragraph No.25 of the said decision, the Apex Court, on CRL.MC NO. 6790 OF 2023 7 2024:KER:77845 the facts, found that the relationship was consensual.
5. While opposing quashment, it is submitted by the learned counsel for the de facto complainant that the allegations are true and the matter would require trial. According to the learned counsel for the de facto complainant, now also, the de facto complainant is facing threat from the accused. Therefore, quashment of the proceedings would be fatal to her.
6. The learned Public Prosecutor opposed quashment of this proceedings on the submission that serious offence under Section 376(2)(n) of the IPC also is made out.
7. Adverting to the power of this Court to quash criminal proceedings resorting to Section 482 of the Cr.P.C. is concerned, indubitably, in respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. In a case of rape CRL.MC NO. 6790 OF 2023 8 2024:KER:77845 or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the "purest treasure", is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. Such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman. Any kind of liberal CRL.MC NO. 6790 OF 2023 9 2024:KER:77845 approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences. In other words, grave or serious offences or offences which involve moral turpitude or have a harmful effect on the social and moral fabric of the society or involve matters concerning public policy, cannot be construed betwixt two individuals or groups only, for such offences have the potential to impact the society at large. Effacing abominable offences through quashing process would not only send a wrong signal to the community, but may also accord an undue benefit to unscrupulous habitual or professional offenders, who can secure a "settlement" through duress, threats, social boycotts, bribes or other dubious means. It is well said that CRL.MC NO. 6790 OF 2023 10 2024:KER:77845 "let no guilty man escape, if it can be avoided."
8. Thus, the law as it stands is that although High Court can invoke its jurisdiction u/s.482 Cr.P.C. even in non-compoundable offence and can quash the proceedings on the basis of settlement arrived at between the parties even in the cases of non-compoundable offences but while exercising its jurisdiction this Court must consider the fact that whether the proceeding relates to any serious and heinous offences and whether the crime in question has impact over the society. In cases of serious nature which affects the society at large this Court should not exercise its jurisdiction under Section 482 Cr.P.C. for quashing the proceedings on the basis of compromise executed between the parties. (See decisions in Gian Singh v. State of Punjab and Another reported in [(2012) 10 SCC 303], Narinder Singh and Others v. State of Punjab and Another reported in [(2014) 9 SCC 466], Shimbhu v. State of Haryana reported in [AIR 2014 Supreme Court 739](three Bench), State of Madhya Pradesh v. Madanlal reported in [AIR 2015 Supreme Court 3003] (two Bench), Parbatbhai Aahir @ Parbatbhai CRL.MC NO. 6790 OF 2023 11 2024:KER:77845 Bhimsinhbhai Karmur and Others v. State of Gujarat and Another reported in [(2017) 9 SCC 641], State of Madhya Pradesh v. Laxmi Narayan & Ors. reported in [(2019) 5 SCC 688], Arun Singh and Others v. State of Uttar Pradesh Through its Secretary and Another reported in [(2020) (3) SCC 736], Ram Gopal & Another v. State of Madhya Pradesh reported in [(2021 0 Supreme (SC) 529)], Daxaben v. The State of Gujarat & others reported in [2022 LiveLaw (SC) 642], P.Dharmraj v.
Shanmugam and others decided on 8th September 2022 in Crl.Appeal Nos.1515-1516 of 2022).
9. On perusal of the statement given by the de facto complainant, which led to registration of this crime on 10.8.2022, it is discernible that the de facto complainant and the accused made acquaintance each other, when the husband of the de facto complainant left to foreign country after their marriage in January 2019. While continuing the relationship through Instagram, the de facto complainant and the accused fell into an affair and during this relationship, the de facto complainant sent her nude photos CRL.MC NO. 6790 OF 2023 12 2024:KER:77845 to the accused through whatsapp and also made video calls, showing her body. Thereafter, on 8.11.2020, the accused threatened her alarming that her life would be destroyed and she was taken to Delux lodge, near Moulana Hospital, Perinthalmanna, in his Polo car and subjected her to sexual intercourse. Later also, on two times, she was taken to the same lodge and repeated sexual intercourse. FI Statement recites further that, on 20.6.2022 and 11.7.2022 also, she was taken to Woodbine Hotel, Malappuram and subjected her to sexual intercourse. The de facto complainant was also subjected to rape in Dubai when she was in Dubai. The further allegation is that, now, the accused threatening and pressuring the de facto complainant to go with him. This is the base, on which, this crime was registered.
10. Reading the genesis of the case, the inference is that the relationship between the accused and the de facto complainant, who is admittedly a married lady, is purely consensual and the offence of rape would not attract on this facet. Similarly, other offences also would not attract in the facts of this case. Therefore, this is a fit case to exercise the power under Section 482 of the Cr.P.C. CRL.MC NO. 6790 OF 2023 13 2024:KER:77845 to quash the proceedings.
In the result, this petition stands allowed. All further proceedings in S.C.No.18/2023 on the files of the Fast Track Special Court-II, Manjeri, Malappuram District, arose out of Crime No.67/2022 of Vanitha police station, Malappuram, against the petitioner herein, stand quashed.
Sd/-
A. BADHARUDEEN JUDGE Bb CRL.MC NO. 6790 OF 2023 14 2024:KER:77845 APPENDIX OF CRL.MC NO.6790 OF 2023 PETITIONER'S ANNEXURES ANNEXURE A1 A TRUE COPY OF THE FIR NO.67/2022 DATED 10.8.2022 VANITHA POLICE STATION, MALAPPURAM ANNEXURE A2 A TRUE COPY OF THE FINAL REPORT NO.67/2022 DATED 3/10/2022 VANITHA POLICE STATION, MALAPPURAM RESPONDENTS' ANNEXURES : NIL