Muhammed Shahabas vs State Of Kerala

A. Badharudeen, J

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, by the petitioner, who is the accused in Crime No.151/2017 of Tirur police station, Malappuram District, now pending as S.C.No.1070/2017 on the files of the Fast Track Special Court, Tirur and the prayer herein is as under:

To quash the proceedings in S.C.No.1070/2017 on the file of the Fast Track Special Court, Tirur, arising from Crime No.151/2017 of Tirur Police Station, Malappuram District.

Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the relevant records.

In this matter, the prosecution alleges commission of offences punishable under Sections 366 and 376(2)(n) of the Indian Penal Code (for short, ‘the IPC’ hereinafter). The prosecution case is that, the accused kidnapped the victim from her residential house to Tiruppur  and  subjected her  to  forceful  sexual  intercourse  on 23.2.2017 and 24.2.2027.

The learned counsel for the petitioner would submit that, none of the offences made out from the prosecution records and in such view of the matter, the prosecution allegation, as against the petitioner, would require quashment. It is also submitted that, the victim went along with the accused voluntarily and therefore, the sexual intercourse, if any, is also is the outcome of consent. The learned counsel also placed affidavit filed by the victim along with the affidavit filed by the father of the victim, supporting the settlement.

While opposing quashment, the learned Public Prosecutor would submit that, going by the allegations, prima facie, the prosecution case is made out and the question of consent, is a matter of evidence.

It appears that, as per the statement given by the father of the victim, the victim married 7 years before, to one Shihabudeen and she had children, aged 6 years and 4 years, respectively. It is relevant to note that, initially, crime was registered, alleging offence under Section 57 of the Kerala Police Act, 2011 and thereafter, offences under Sections 366 and 376(2)(n) of the IPC, were alleged.

Adverting to the power of this Court to quash criminal proceedings resorting to Section 482 of the Cr.P.C., 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).

At the same time, quashment of criminal proceedings, involving serious offences also can be resorted to, when the prosecution materials would show that the same do not make out, prima facie, the said offences.

Having appraised the legal position, on scrutiny of the materials, it could be seen that the victim, a married lady, went along with the accused and travelled to Tiruppur and they had sexual intercourse therein. Therefore, promise of marriage alleged by the victim, who is a lady already married and having children, is unbelievable at the threshold. If so, the sexual intercourse on the promise of marriage, could not be believed and prima facie, the relationship is purely consensual in nature. Therefore, quashment, as sought for, is liable to be considered.

In the result, this Criminal Miscellaneous Case stands allowed. All further proceedings in S.C.No.1070/2017 on the files of the Fast Track Special Court, Tirur, arose out of Crime No.151/2017 of Tirur Police Station, Malappuram District, against the petitioner herein, stand quashed.