A. Badharudeen, J
1. This petition under Section 482 of the Code of Criminal Procedure, to quash Annexure-I final report and all further proceedings in SC No.615/2015
on the files of the Special Court for the trial of cases relating to Atrocities & Sexual Violence against Women and Children), Thrissur, has been filed
by the defacto complainant and the victim together.
2. Heard the learned counsel for the petitioners and the learned Public Prosecutor at length. Perused the records placed by learned counsel for the
petitioners as well as the case diary as such produced by the learned Public Prosecutor.
3. On tracing the genesis of the case, this case was registered by Thrissur East Police, as per Annexure-III FIR, based on Annexure-II complaint
lodged by the mother of the victim, who is the 1st petitioner herein. In Annexure-II complaint, the defacto complainant raised allegation that the
accused herein, who taught dance to the victim (CW2), the 2nd petitioner herein, offered chance for the victim to act in films and reality shows and
thereafter subjected the victim to sexual intercourse on the said premise. The further allegation is that the accused was a married person and in the
complaint, apprehension of similar instances from the accused to other girls was also stated. The Inspector of Police, Vanitha Cell, Thrissur City, on
getting Annexure-II complaint, forwarded the same to the Station House Officer, Thrissur East Police Station, for further necessary action, which led
to registration of Annexure-III FIR. Later, Annexure-III was transferred to Guruvayoor police station, where Annexure-IV FIR (Crime
No.775/2015), alleging commission of offence punishable under Section 376 of the Indian Penal Code, 1860, (hereinafter referred to as ‘IPC’
for short) as well as under Section 3 r/w 4 of the Protection of Children from Sexual Offences Act, 2013 (hereinafter referred to as ‘PoCSO
Act’ for short), was registered. Later, the case was investigated and Annexure-I final report was filed as on 25.08.2015 alleging that the accused
herein committed offences punishable under Sections 376 and 109 r/w 34 of IPC as well as under Sections 3 and 4 of the PoCSO Act.
4. The learned counsel for the petitioners read out the genesis of the case, as stated above, and pointed out that this is a false case foisted at the
instance of the 1st petitioner initially on misunderstanding. The learned counsel for the petitioners had given much emphasis to the 164 Cr.P.C.
statement of the victim, recorded as on 12.06.2015, on the next day of recording her 161 statement, on the submission that in the 164 statement
nothing was disclosed by the victim insofar as any sexual assault or molestation, though the allegations of the prosecution have been stated in the 161
Cr.P.C. statement.
5. On perusal of the 164 Cr.P.C. statement of the victim, it is discernible that the victim stated before the Magistrate that her parents are living
separately. The accused was her choreographer when she participated in D4 Dance and the victim and the accused were in love. But the accused
married another lady and the accused told her that her parents were attempting to make money by selling her. The victim stated further that the victim
was in good terms with the wife of the accused, but her mother used to defame the victim and the accused. Further the same was supported by the
father also. According to her, the complaint was one written by compulsion and she had nothing to say regarding the case and the allegations in the
complaint are false. When the Magistrate asked a question as to whether anything more to be stated, the victim stated that this case was incorrect and
she did not know about the same.
6. As pointed out by the learned Public Prosecutor and also conceded by the learned counsel for the petitioners, before recording 164 Cr.P.C.
statement, which would give a clean chit to the accused, as on 11.06.2015, the police recorded the statement of the victim and in the said statement,
the victim stated that while she was studying in 6th and 7th standards, she resided along with her mother. At the time of recording statement, the
victim had been studying in Plus two and according to her, she joined to study dance in Dynamic Heroes, as opted by her mother and the accused by
name Shani @ Sainul Abid was the master who taught her dance. While so, she got opportunity to participate in D4 Dance programme in Mazhavil
Manorama channel along with the accused. Meanwhile, the accused decided to marry her and the mother/defacto complainant also was amenable to
the proposal. Later, the mother/1st petitioner allowed the victim to go along with the accused and thereafter, they became lovers and on this pretext,
the accused demanded sexual favour on the premise of marriage. Accordingly, during the month of February, 2015, the accused had sexual
intercourse with the victim at Aroor Residency, Ernakulam, and continued the relationship at Aroor Residency on multiple occasions. In the meantime,
the accused married another lady and cheated the victim. She informed the wife of the accused regarding the sexual relationship with the accused.
Then the accused, along with his wife, reached the residence of the victim’s mother and resided three days there. Meanwhile, the wife of the
accused persuaded her to marry the accused so that both of them could live as wives of the accused. Accordingly, they had sexual intercourse. In the
same statement, the victim stated that she got opportunity to inaugurate certain shops after the channel programme and the money for the same was
collected by the accused. Thereafter, the mother demanded money and there was quarrel in between the accused and her mother and at this juncture,
the mother demanded Rs.50 lakh and threatened to complain about sexual persecution at the instance of the accused. Later she had quarreled with
the mother and she was sent out of the house and she went along with another lady. Subsequent sexual intercourse was also disclosed in the
statement, where the victim demanded legal action against the accused, his wife-one Shahana, and her mother.
7. It is discernible that even though the victim given statement disclosing occurrences in tune with the prosecution allegations on 11.06.2015, when she
was produced before the Magistrate to record her statement under Section 164 of Cr.P.C., she did not disclose anything as stated in the 161 Cr.P.C.
statement.
8. It is at this juncture, this petition has been filed along with Annexures VI and VII affidavits sworn by the 1st petitioner who lodged Annexure II
complaint, and the 2nd petitioner, the victim who attained the aged of 22 as on the date of filing her affidavit, on 04.08.2020 respectively. As per the
affidavit of the victim, it has been submitted that the victim voluntarily decided in consultation with the 1st petitioner, her mother, to terminate the
proceedings initiated upon the complaint of the mother and pending which is precipitated as Annexure-I before the trial court. She does not want to
cause anybody any further embarrassment, including R3 to R5. Moreover, on enquiry before the trial court as to the time required for completing the
trial, it has been revealed that there is no possibility for conducting the trial in the near future, especially considering pandemic situation. In the
affidavits, it is stated that they believe that R3 to R5 would not be prejudiced in any way by allowing the prayer sought for in this petition.
9. The question poses for consideration is: whether quashment of this proceeding is to be considered in a case where 164 Cr.P.C. statement of the
victim did not disclose anything as to occurrence, though 161 Cr.P.C. statement is in favour of the prosecution allegations?
10. It is pointed out by the learned counsel for the petitioners that even though contradictory statements usually be considered during trial, when the
defacto complainant and the victim support the 164 Cr.P.C. statement by filing separate affidavits, in deviation from the general prescription,
quashment of the proceedings can be resorted to in order to save the interest of the victim as well as the accused, in consideration that in the facts of
the case, conviction is not possible.
11. The learned Public Prosecutor placed decision of this Court in Ivin V. Statement Kerala represented by the Public Prosecutor, reported in (2024) 0
KER 43584 : (2025) 0 Supreme (Ker) 571, to contend that in cases of serious nature which affect 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. In the saidÂ
decision, this Court considered earlier decisions of the Apex Court in paragraph Nos.7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 (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 202 and summarised the legal principle in paragraph No.17, which reads as
under:
“17. Thus, the law emerges is that, 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 nonperishable 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.â€
12. In the instant case, as submitted by the learned Public Prosecutor and as discernible from the case diary, apart from the 161 Cr.P.C. statement
given by the victim on 11.06.2015, her statements were recorded on 17.06.2015, 09.07.2015 and 10.07.2015 by the Investigating Officer. In the
statement given on 17.06.2015, in deviation from the 164 statement, the defacto complainant stated that during the month of January, 2015, she was
subjected to sexual intercourse by the accused on the first floor of his residence at Anchangadi, and the wife of the first accused also aided the
persecution at the instance of the first accused. In the statement, she added that after the first week of January, 2015, she resided along with the first
accused in connection with D4 Dance and she was subjected to sexual intercourse at Aroor Residency. She deposed that thereafter she was
subjected to sexual intercourse by the first accused at the house of his friend, one Mr.Shafeer at Kandanassery in Guruvayoor. In this time also, the
wife of the first accused aided the same. It is stated that the 3rd accused, wife of the 1st accused, also beat on the face of the victim. As on
09.07.2015 also, her statement was again recorded. In the said statement, she had given similar statement as that recorded on 11.06.2015 and
17.06.2015. She had given statement to the police to the effect that the dance teacher (A1) at Dynamic Heroes subjected her to sexual intercourse
and she identified the first accused as the person who had repeated sexual intercourse with her. In the said statement, apart from identifying the first
accused, she identified the 2nd accused, who also aided the persecution at the instance of the first accused. She also stated that she had shown room
No.57 at Aroor Residency hotel/lodge to the police at 10 am on 09.07.2015, where she was subjected to sexual intercourse by the first accused.
Again, as on 10.07.2015, the statement of the defacto complainant was recorded, wherein she reiterated that what she stated in her statements dated
11.06.2015, 17.06.2015 and 09.07.2015 regarding repeated sexual intercourse by the first accused, who is the dance teacher, at his house at Aroor
Residency and at the house of the 2nd accused, is true and she had shown the room of the house of the first accused at 10 am on 17.05.2015 to the
investigating officer. Again she had given statement that she had also shown the room at the house of the 2nd accused, where she was subjected to
sexual intercourse by the first accused at 11 am on 10.07.2015. The defacto complainant also given statement on 10.07.2015 stating that she had given
statements on 16.04.2015, 17.04.2015, 17.06.2015 and 09.07.2015 regarding sexual molestation by the accused persons herein. She also identified the
house of the first accused where the victim was molested. Thus this is a case, wherein, the statements of the victim recorded by the police on
11.06.2015, 17.06.2015, 09.07.2015 and 10.07.2015, the victim reiterated sexual intercourse at the instance of the first accused and the involvement of
the 2nd and the 3rd accused in aiding the commission of the said crime and she had shown the place of occurrence with certainty. It is true that in the
164 Cr.P.C. statement recorded on the next day, she did not support the prosecution allegation. Similar is the position with regard to the statements of
the defacto complainant who has now filed Annexure VI affidavit, after taking a U-turn from the above statements. In the instant case, even though
the victim had not stated anything in the 164 Cr.P.C. statement, in her 161 Cr.P.C. statements recorded on 11.06.2015, 17.06.2015, 09.07.2015 and
10.07.2015, the victim categorically narrated the sexual intercourse at the instance of the first accused. In this matter, where very serious offences
alleged to be committed by the accused persons against a minor victim, including offences under the PoCSO Act, and the same are prima facie to be
read out from the prosecution records. Therefore, such a case could not be quashed, merely acting on the 164 Cr.P.C. statement, which is not in
parity with the other statements of the victim and the defacto complainant and also acting on the averments raised in the affidavits by the defacto
complainant and the victim. Therefore, the prayer to quash the proceedings is liable to fail. It is held further that when quashment of serious offence
under Section 376 of IPC and offences under the PoCSO Act is sought, when prima facie the offences are made out, quashment prayer at the
instance of the victim has no preference. Accordingly, the same deserves dismissal.
In the result, this petition is dismissed directing the accused to co-operate with the trial.
It is noticed that this is a sessions case of the year 2015 and the trial has been stalled for multiple reasons, inclusive of pendency of this Crl.M.C. from
2020 onwards. Therefore, there shall be a direction to the trial court to expedite the trial and complete the same at any rate within a period of three
months from the date of receipt of a copy of this order.
Registry is directed to forward a copy of this order to the trial court for information and compliance.
