Ali Akbar vs State Of Kerala

A. Badharudeen, J

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, to quash Annexure 1 Final Report and all further proceedings in S.C.No.992/2022 on the files of the Special Court under the Protection of Children from Sexual Offences Act (for short, ‘the POCSO Act’ herenafter), Ernakulam, arose out of Crime No.723/2022 of Kothamangalam Police Station, Ernakulam.

Heard the learned counsel for the petitioner and the learned Public Prosecutor. I have perused the relevant records.

Precisely, the prosecution allegation herein is that, at 10.00 p.m. on 20.2.2022, the accused herein subjected the de facto complainant to rape, after threatening her, stating that her nude photos and videos in possession of the accused, would be published through social media. Further, forceful carnal intercourse also is alleged to be committed by the accused on the de facto complainant. Thus, the prosecution alleges commission of offences punishable under Sections 376(1), 376(2)(n) and 377 of the IPC and Section 66(E) of the IT Act.

The learned counsel for the petitioner, who sought quashment of the proceedings, vehemently argued to contend that the entire allegations are without any iota of truth. The husband of the de facto complainant (CW2) and the petitioner were friends through social media and they met during January, 2021 along with the de facto complainant. Thereafter, the petitioner and the de facto complainant indulged in a relationship and the de facto complainant looted substantial amounts and gold ornaments from the petitioner on several occasions, using the said relationship. Thereafter, the present complaint was registered to wreck vengeance against the petitioner, when the petitioner was not ready to give more money to the de facto complainant. According to the learned counsel for the petitioner, in the medical evidence also, nothing to prove the allegations as raised by the de facto complainant.

Strongly opposing quashment of the proceedings, where the offences alleged are specifically made out prima facie, the learned Public Prosecutor would submit that Annexure A7, showing remittance of Rs.50,000/- to the account of the de facto complainant and Annexure A8 whats app chats between the de facto complainant and the accused, to contend the relationship was consensual.

In this matter, the occurrence is on 20.2.2022 and the FIR seen lodged on 14.4.2022 and the delay is only less than two months from the date of occurrence. Annexure 3 FIS shows cordial relationship between the de facto complainant and the accused, who had maintained 7 phone numbers, and led regular meetings. In the FIS, the de facto complainant stated that the accused was in the habit of using MDMA drug and he administered the same to her also. Further, he had obtained nude photos and videos of the de facto complainant and when the husband of the de facto complainant came to know about this relationship, the accused offered to marry the de facto complainant on getting divorce from her husband. The specific case of the de facto complainant is that, now, the de facto complainant used to have sexual intercourse with the accused after threatening her stating that her nude photos and videos would be published in social media.

Even though the learned counsel for the petitioner submitted that there was no relationship as alleged, going by Annexures produced by the petitioner, the relationship between them could be gathered. Therefore, it is argued by the learned counsel for the petitioner that, if at all any sexual intercourse, the same is the outcome of consents.

Adverting to the power of this Court to quash criminal proceedings restoring 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 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 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 “let no guilty man escape, if it can be avoided.”

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 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).

Whether the relationship is consensual, is a matter to be decided during evidence and merely relying on the Annexures produced by the petitioner without proof of the same, this Court cannot quash the proceedings, holding that there are no materials, prima facie, to go for trial.

Therefore, the quashment, as prayed for, stands disallowed, with liberty to the petitioner to raise his contentions before the trial court during trial.

In the result, this petition is dismissed.

Registry is directed to forward a copy of this order to the trial court, for information and further steps.