Kerala High Court
Arshad vs State Of Kerala on 30 September, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942
Crl.MC.No.2692 OF 2020(F)
CRIME NO.98/2020 OF PARAPPANGADI POLICE STATION, MALAPPURAM
DISTRSICT
PETITIONER:
ARSHAD
AGED 29 YEARS, S/O. MOIDEEN KOYA,
PULIKKAL HOUSE, KADALUNDI NAGARAM POST,
MALAPPURAM DISTRICT
BY ADV. SRI.K.P.SUDHEER
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 018
2 STATION HOUSE OFFICER
PARAPPANANGADI POLICE STATION, PARAPPANANGADI,
MALAPPURAM DISTRICT, PIN-676 303
3 XXXXXXXX (VICTIM)
XXXXXXXX
XXXXXXXX
R3 BY ADV. ARUN MATHEW VADAKKAN
OTHER PRESENT:
SRI.B.JAYASURYA, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
30.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.2692 OF 2020(F) 2
(CR)
ALEXANDER THOMAS, J.
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Crl.MC.No.2692 of 2020(F)
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Dated this the 30th day of September, 2020
ORDER
The prayer in the aforecaptioned Criminal Miscellaneous Case, filed under Section 482 of the Cr.P.C. is as follows:-
"xxx xxx xxx to be submitted at the time of hearing, it is respectfully prayed that this Hon'ble Court be plased to quash the proceedings in Crime No.98/2020 of Parappanangadi Police Station, Malappuram District."
2. Heard Sri.K.P. Sudheer, learned counsel appearing for the petitioner/accused, Sri.B.Jaya Surya, learned Public Prosecutor appearing for 1st & 2nd respondents and Sri.Arun Mathew Vadakkan, learned Advocate appearing for the contesting respondent No.3 (lady de facto complainant/victim).
3. The petitioner herein has been arrayed as the sole accused in the instant impugned Annexure A-1 First Information Report (FIR) in Crime No.98/2020 of Parappanangadi Police Station, Malappuram District, for offences punishable under Section 511 of Section 376 & 506 of the IPC on the basis of the First Information Statement (FIS) Crl.MC.No.2692 OF 2020(F) 3 furnished by the 3rd respondent (lady de facto complainant/ victim) on 12.03.2020 at about 10 pm. in respect of the alleged incident happened on 09.03.2020 at about 11 am.
4. The 3rd respondent (lady de facto complainant/ victim) is a married lady aged 29 years, who is residing in her parental home along with her two children, separate from her husband. The petitioner/accused, aged 29 years, is stated to be living in the immediate neighbourhood of the 3 rd respondent's parental home, where she is now residing. The offences alleged in Annexure A-1 FIR are those punishable under Section 511 of 376, Section 448 and Section 506 of the IPC.
5. Now, it is submitted by Sri.K.P. Sudheer, learned counsel appearing for the petitioner/accused and Sri.Arun Mathew Vadakkan, learned Advocate, appearing for the 3 rd respondent, that the entire disputes between the petitioner and the 3rd respondent have been resolved and that the 3 rd respondent has now filed Annexure A-2 affidavit dated 28.03.2020, that the abovesaid proceedings have been initiated out of misunderstandings and that she has arrived at an amicable settlement and also that she has no objections in quashment of the impugned criminal proceedings. Crl.MC.No.2692 OF 2020(F) 4
6. After hearing all the parties concerned, it is seen that going by the allegations raised in Annexure A FIR and FIS, the same does not disclose the serious offence of Section 511 of Section 376 of the IPC (attempt to commit rape). In that regard, it has to be borne in mind that an attempt to commit an offence is an act or series of acts, which leads inevitably to the commission of the main substantive offence, unless something, which the doer of the act neither thought so nor intended happen to prevent this and an attempt may be described to be an act done in part execution of a criminal desire amounting to more than preparation or polish on the factum of consideration and processing except the failure to consummate, all the elements of the substantive crime. The Apex Court has held in decisions as in Aman Kumar and Another V. State of Haryana [AIR 2004 (SC) 1497] in paragraph No.11 that in order to find that an accused is guilty of the offence of an attempt to commit a rape (as per Section 511 of Section 376 of the IPC), thereafter his satisfaction that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person from that he intended to do so at all events, and notwithstanding any resistance on her part, and Crl.MC.No.2692 OF 2020(F) 5 that indecent assaults are often magnified in to attempts at rape and that 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 that surrounding circumstances many times would throw beacon light on that aspect, etc. It will be profitable to refer to the legal principles laid down by the Apex Court in paragraph Nos.8 to 11 of the decision in Aman Kumar and Another V. State of Haryana [AIR 2004 (SC) 1497], which 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, attempt is 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 Crl.MC.No.2692 OF 2020(F) 6 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 Crl.MC.No.2692 OF 2020(F) 7 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 aspect."
7. On going through Annexure-A FIR and FIS, it is seen that the particular allegations made therein are that when the lady de facto complainant was alone, the petitioner had come there after making sure that she was alone there and then he had trespassed into the house and had grabbed and kissed her and that when he had tried to drag her to a room, she had resisted the same and also that thereafter she stated that the accused had attempted to rape her and that at that time somebody had come near the front door at which point of time the petitioner had ran away, etc.
8. Other than making the generalised allegations that the accused had attempted to rape the lady de facto complainant, the vital ingredients of attempt to commit rape are not disclosed in the impugned Annexure-A1 criminal proceedings. Therefore, going by the legal principles laid down by the Apex Court in decisions as in Aman Kumar's case (supra) it is rather difficult to hold that the serious offence of attempt to commit rape as per Section 511 of 376 of the IPC has been disclosed in the instant impugned proceedings. Crl.MC.No.2692 OF 2020(F) 8
9. Certainly the offence as per Section 354 of the IPC (outraging modesty of a women) would be disclosed by the instant allegations. The other offences alleged in Annexure-A1 FIR are those punishable under Section 448 (relating to criminal trespass) and Section 506 (relating to criminal intimidation).
10. 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 Crl.MC.No.2692 OF 2020(F) 9 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.
11. The above said offences in question like Sections 354, 448, 506 of the IPC, as in the instant case could be considered for quashment on the ground of settlement between the parties.
12. The learned public prosecutor was requested to get instructions in the matter and today when the matter is taken up for consideration, the learned Public Prosecutor submits that the Investigating Officer conducted a legal enquiry and has also recorded the statement of the 3rd respondent, who has stated that she has voluntarily entered into a settlement agreement with the petitioner/accused and that she had sworn to Annexure-A2 affidavit and that she has no objections in quashing the impugned criminal proceedings and that she deems it fit that the impugned criminal proceedings may be terminated as it might be otherwise irritant in her life, etc. Crl.MC.No.2692 OF 2020(F) 10
13. Accordingly this court opines that going by the nature of the facts and circumstances of the case, the plea for quashment on the ground of settlement could be considered. In that view of the matter it is ordered, that the impugned Annexure-A1 FIR in Crime No.98/2020 of Parappanangadi Police Station, Malappuram District, as against the petitioner/accused and all further proceedings emanating therefrom, will stand quashed and set aside.
The petitioner will produce certified copies of this order before the Judicial First Class Magistrate-I, Parappanangadi as well as to the Investigating Officer concerned for necessary information.
With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE Skk//14092020 Crl.MC.No.2692 OF 2020(F) 11 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE-A1 TRUE COPY OF FIRST INFORMATION REPORT DATED 12.03.2020 IN CRIME NO 98/2020 OF PARAPPANANGADI POLICE STATION ANNEXURE-A2 AFFIDAVIT DATED 28.3.2020 EXECUTED BY THE 3RD RESPONDENT ANNEXURE-A3 TRUE COPY OF ORDER DATED 24.5.2019 IN CRL.M.C NO.3290/2019 PASSED BY THIS HON'BLE COURT RESPONDENTS' EXHIBITS: NIL