Kerala High Court
Abey Thomas vs State Of Kerala on 11 August, 2014
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 8TH DAY OF DECEMBER 2014/17TH AGRAHAYANA, 1936
Crl.MC.No.4746 of 2014 (F)
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SC 177/2012 of SESSIONS COURT, KALPETTA
PETITIONER/ACCUSED:
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ABEY THOMAS, AGED 36 YEARS
S/O.THOMAS, ELAPUPARA HOUSE, ARATTUTHARA P.O.
MANANTHAWADY, WAYANADU, PIN: 670 645.
BY ADV. SRI.JESWIN P.VARGHESE
RESPONDENTS/STATE & COMPLAINANTS:
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1. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
2. MALATHY, AGED 48 YEARS
W/O.MANIYAN, ERUVAKKY COLONY, KATTIKULAM
NEAR THIRUNELLY TEMPLE, THIRUNELLY P.O., WAYANADU
PIN: 670 646.
3. GEETHA @ PEMBY, AGED 28 YEARS,
D/O.MANIYAN, ERUVAKKY COLONY, KATTIKULAM
NEAR THIRUNELLY TEMPLE, THIRUNELLY P.O., WAYANADU
PIN: 670 646.
R2-3 BY ADV. SRI.R.SYLESHWAREN NAIR
R1 BY DGP - ADV.SRI.ASIF ALI
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-11-
2014, THE COURT ON 8.12.2014 PASSED THE FOLLOWING:
Crl.MC.No.4746 of 2014 ()
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APPENDIX
PETITIONER(S)' EXHIBITS:
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ANNEXURE A: A TRUE COPY OF THE FINAL REPORT IN SC NO.177/2012
PENDING BEFORE SESSIONS COURT, KALPETTA.
ANNEXURE B: THE AFFIDAVIT SWORN BY THE 2ND RESPONDENT BEFORE
THE NOTARY PUBLIC DATED 11/8/2014.
ANNEXURE C: THE AFFIDAVIT SWORN BY THE 3RD RESPONDENT BEFORE
THE NOTARY PUBLIC DATED 11/8/2014.
RESPONDENT(S)' EXHIBITS: NIL
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// TRUE COPY //
P.A TO JUDGE.
ALEXANDER THOMAS, J.
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Crl.M.C.No.4746 Of 2014
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Dated this the 8th day of December, 2014.
O R D E R
The petitioner herein is the accused in Crime No.163/2011 of Thirunelli Police Station, Wayanad District registered for offence punishable under Section 376 of IPC. After investigation, the police filed the impugned Annexure-A Final Report/Charge Sheet in the aforementioned crime which led to the institution of S.C.No.177/2012 on the file of the Sessions Court, Kalpetta, Wayanad District. In the impugned FIR as well as the in the impugned Final Report/Charge Sheet it is clearly stated that the allegations involving forced sexual intercourse has taken place more than 10 years prior to the date of registration of the FIR on 14.6.2011 and that the said alleged incident of forced sexual intercourse said to have been committed by the petitioner on the victim has occurred in Gonikuppa Village in Kudaku situated in the State of Karnataka. It is further clearly sated in the materials produced along with impugned Annexure-A Final Report/Charge Sheet that the victim has not given any complaint in this regard and ::2::
Crl.M.C.No.4746 Of 2014 that the complaint was made by the victim's mother in a programme meant for promoting the interest of 'Unwed Mothers' in Wayanad, stating that the victim, who is her daughter, was taken for agricultural related work in Gonikuppa Village in Kudaku situated in the State of Karnataka to work in the Ginger fields of the accused and that about 10 years prior to the date of submission of the FIS/FIR on 14.6.2011, the said incident of rape has taken place in Gonikuppa Village in Kudaku in the State of Karnataka. It is further alleged that the victim was aged 14 years at the time of commission of offence. It is further stated that both the victim and the accused were unmarried when the incident alleged to have been occurred and later the victim is married and the accused is also married and that both are leading peaceful life with their respective families. It is clearly stated in the materials produced along with the impugned Annexure-A Final Report/Charge Sheet that it is stated by the 3rd respondent (victim) as evident from Annexure-A(8) (page 11 of paper book in this case) that the victim is married and that the complaint regarding the forced sexual intercourse on her was given by her mother to the ::3::
Crl.M.C.No.4746 Of 2014 police and that she has not given any such complaint and that she is not prepared to undergo any DNA test to find out the paternity of the child in question and that she had made it clear, right from the start, that she is not prepared for any scientific test to find out the paternity of the child as she is married to another person and that in such circumstances to undergo such test would detrimentally affect her present family life and police may not trouble her in this regard. These are the statement, given by the 3rd respondent (victim) to the police. This is again reiterated by her in Annexure-A(7) (page 10 of paper book).
2. It is further stated that the disputes have been settled between the parties and the 2nd respondent (defacto complaint, who is the victim's mother) and the 3rd respondent (victim, who is the daughter of the defacto complainant) have sworn to separate affidavits dated 11.8.2014 produced as Annexures-B & C in this Crl.M.C. In Annexure-C affidavit, the 3rd respondent (victim) has reiterated her earlier statements given to the police as made out in the impugned Annexure-A Final Report/Charge Sheet that the complaint in question ::4::
Crl.M.C.No.4746 Of 2014 regarding rape was not given with the consent or knowledge of the 3rd respondent and that she is not interested to pursue the criminal proceedings as she is now settled in her married life and that any further continuation of the impugned proceedings would disturb the peaceful and cordial continuation of her family life etc. and that she has no objection in the quashment of the impugned criminal proceedings. The 2nd respondent- defacto complainant has also taken a similar stand as can be seen from Annexure-B affidavit wherein she has stated that the 3rd respondent, who is her daughter, is now continuing her family life and that she is not interested to continue the impugned criminal proceedings. It is further made clear in Annexure-B affidavit by the 2nd respondent that she had given the complaint on 14.6.2011 in the community hall of the Kattikulam Grama Panchayath wherein an Adalat Programme for unwed mothers was conducted and it is in this circumstance, she had given the complaint on 14.6.2011 which led to the registration of the impugned Crime No.163/2011 of Thirunelli Police Station, Wayanad District etc. It is in the light of these facts and circumstances that the petitioner filed the ::5::
Crl.M.C.No.4746 Of 2014 present Crl.M.C with the prayer to quash the impugned Annexure-A Final Report/Charge Sheet in the impugned Crime No.163/2011 of Thirunelli Police Station, Wayanad District which has led to the institution of S.C.No.177/2012 on the file of the Sessions Court, Kalpetta and all further proceedings arising therefrom.
3. Heard Sri.Jeswin P.Varghese, learned counsel for the petitioner, learned Public Prosecutor appearing for the 1st respondent and Sri.Syleswaran Nair, learned counsel appearing for respondents 2 & 3.
4. Learned counsel for the petitioner and learned counsel for the contesting respondents have reiterated their respective submissions based on their pleadings on record. Learned Public Prosecutor has opposed the prayer.
5. It has clearly come out as per the indisputable materials on record especially those based on the impugned Annexure-A Final Report/Charge Sheet in the impugned crime that the alleged incident of forced sexual intercourse has took place more than 10 years prior to the date of submission of the First Information Statement on 14.6.2011 and that the said ::6::
Crl.M.C.No.4746 Of 2014 incident was happened in Gonikuppa Village, Kudaku situated in the State of Karnataka. Moreover, it is very clear from the impugned Annexure-A Final Report/Charge Sheet, as per the statement given thereof by none other than the 3rd respondent, that the victim has not raised any complaint before the police or any other authority about the alleged incident and the complaint was given by the 2nd respondent, who is the mother of the victim, to the Adalat held on 14.6.2011 for the benefit of unwed mothers. Moreover, it is further clear from Annexure-A(7) and A(8) given on pages 10 & 11 of the paper book of this case which form part of the impugned Annexure-A Final Report/Charge Sheet that the 3rd respondent (victim) is not prepared for any medical examination or for any scientific testing to ascertain the paternity of the child in question and that she has not given any complaint about the alleged incident. The fact that the alleged incident was taken place in the State of Karnataka and the victim has not given any such complaint and the victim is not prepared for any medical examination or scientific testing to know the paternity of the child are indisputable materials ::7::
Crl.M.C.No.4746 Of 2014 in Annexure-A Final Report/Charge Sheet itself. So in a case like this, the delay is very fatal as held by this Court in the order dated 15.7.2014 in Crl.M.C.No.1569/2011 which dealt with a case of quashing of the offence under Section 376 (rape) as the incident had occurred long prior to the date of registration of the crime. The said order dated 15.7.2014 rendered in Crl.M.C.No.1569/2011 reads as follows:
"The petitioner is the sole accused in SC No.559 of 2012 on the file of the Sessions Judge, Kasaragod. The allegation against him is that about 24 years ago he made a false promise to the first informant, who is the second respondent before this court, that he would marry her, who belongs to a Scheduled Caste, and had sexual intercourse with her and refused to marry her later and has thus committed the offence under Section 376 IPC. This petition has been filed to quash the proceedings in the criminal case on the ground that the matter has been settled between the petitioner and the first informant, the second respondent.
2. Heard the learned counsel for the petitioner, the second respondent and the learned Public Prosecutor.
3. The second respondent has a son aged 25 years now. On 4.4.2011 she gave a statement to the police that the petitioner made a false promise to her that he would marry her and having obtained her consent he had sexual intercourse with her on several occasions. She became pregnant. Later, she learnt that he had already married a woman. According to the prosecution the petitioner is guilty of the offence under Section 376 IPC.
4. The police was informed of the incident 22 years after the alleged incident. The reason stated by the first informant is that she had not known where she should file complaint.
5. Now she, the second respondent, has entered appearance through a counsel and filed an affidavit to the ::8::
Crl.M.C.No.4746 Of 2014 effect that the matter has been settled and she has no complaint against the petitioner and she has no objection to the proceedings in the criminal case being quashed. As noted above, there is no explanation for the delay of more than two decades for informing the police. Admittedly, it was with the consent of the second respondent, the petitioner had sexual intercourse with her. The petitioner is now aged 53 years. The facts of the case and the circumstances in which the first informant informed the police about the incident compel me to take the view that this is a fit case to invoke the jurisdiction of this court under Section 482 Cr.P.C.
In the result, this Crl.M.C is allowed and the proceedings in SC No.559 of 2012 on the file of the Sessions Judge, Kasaragod are quashed. The learned Sessions Judge may pass appropriate orders for disposal of the material objects produced in this case, if any."
6. The Apex Court in Gian Singh v. State of Punjab (2012) 10 SCC 303, after surveying many decisions of the court on the point, has categorically held that the inherent powers of the High Court under Section 482 Cr.P.C is of wide plenitude with no statutory limitation but it has to be exercised
(i) to secure the ends of justice or (ii) to prevent abuse of the process of any court or (iii) to do real, complete and substantial justice. The Supreme Court in the case State of Haryana v. Bhajan Lal reported in 1992 Supp. (1) SCC 335 = (1992) SCC (Cri) 426 as laid down the parameters of quashing the Crl.M.C. In the case Inder Mohan Goswami and another v. State of Utharanchal and others reported in (2007) 12 SCC 1, the Apex Court has held that every High ::9::
Crl.M.C.No.4746 Of 2014 Court has the inherent power to "ex debito justitiae" to do real, complete and substantial justice for the administration of which the court exists or to prevent the abuse of process of court. In Shaji @ Pappu v. Radhika and another reported in 2011 (4) KHC 616 (SC), the Supreme Court while quashing the impugned FIR therein lodged for offences under Sections 354 and 394 IPC has held that even if an offence is non-
compoundable under Section 320 Cr.P.C, the High Court can still, in exercise of its inherent powers, quash the proceedings in a case where there is no chance of recording a conviction against the accused and entire exercise of a trial is destined to be an exercise in futility in view of the settlement arrived at between the parties. It has been consistently held by the Supreme Court in many decisions that where the chances of conviction is very remote, then the inherent power of the High Court under Section 482 Cr.P.C can be invoked for quashing the impugned criminal proceedings. True, that the Apex Court in paragraph 61 of Gian Singh's case has held that the power of quashing in case of settlement of cases involving serious crime like murder, rape, dacoity etc. cannot be fittingly ::10::
Crl.M.C.No.4746 Of 2014 quashed under proceedings in Sec.482 Cr.P.C even though the victim or victim's family and the offender have settled the disputes between them. Even though the 2nd respondent (victim's mother) who is the complaint and the 3rd respondent (victim) have sworn to Annexures-B & C affidavits stating that they have settled the disputes with the petitioner etc. this Court is not relying upon the said settlement said to have been arrived at between the parties for the purpose of consideration of this case.
7. In the instant case, the allegation of rape has been made for the first time on 14.6.2011 which is admittedly said to be more than 10 years prior to the date of occurrence. It is the further admitted case as evident from Annexure-A final Report/Charge Sheet that the victim has not submitted any complaint till date and that the complaint was given by the victim's mother on 14.6.2011 in connection with settlement of grievances of unwed mothers in Adalat organised by the Village Panchayath concerned. It is the further admitted case in the impugned Annexure-A Final Report/Charge Sheet that the alleged incident is said to have occurred in Gonikuppa ::11::
Crl.M.C.No.4746 Of 2014 Village, Kudaku situated in the State of Karnataka. Solely on the ground that the place of occurrence of the alleged offence is admittedly outside the territorial limits of State of Kerala, the police authorities in the State of Kerala do not have any jurisdiction to investigate and prosecute the said offence which has occurred in the State of Karnataka in view of the specific mandatory provisions in Sec.156(1) r/w Sec.177 of the Code of Criminal Procedure. Moreover, the delay of more than 10 years is quite fatal in the facts and circumstances of the case and more importantly the statement given in the impugned Annexure-A Final Report/Charge Sheet that the victim has never made any complaint and that she is not in any way pursue the complaint by subjecting her to scientific testing or medical examination for knowing paternity of the child in question etc. as she has already married to another person and is leading peaceful family life with her husband and children. For these reasons, this Court is inclined to exercise discretion under Sec.482 Cr.P.C so as to secure the ends of justice.
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Crl.M.C.No.4746 Of 2014 In the result, Crl.M.C is allowed and the impugned Annexure-A Final Report/Charge Sheet in Crime No.163/2011 of Thirunelli Police Station, Wayanad District which has led to the institution of S.C.No.177/2012 on the file of the Sessions Court, Kalpetta and all further proceedings arising therefrom stand quashed. The petitioner shall forward certified copies of this order to the Station House Officer, Thirunelli Plice Station and to the Sessions Court, Kalpetta.
ALEXANDER THOMAS, Judge.
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