High Court Kerala High Court

Arun Hari Prasad vs The State Of Kerala on 29 May, 2008

Kerala High Court
Arun Hari Prasad vs The State Of Kerala on 29 May, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4111 of 2005()


1. ARUN HARI PRASAD,
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA,
                       ...       Respondent

2. SIMON THOMAS, MUKALEL HOUSE, KAIPUZHA,

                For Petitioner  :SRI.FEBIN J.VELUKARAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :29/05/2008

 O R D E R
                      V.K.MOHANAN, J.
            ---------------------------------------------
                Crl.M.C.No. 4111 of 2005
            ---------------------------------------------
            Dated this the 29th day of May, 2008

                           O R D E R

The petitioner who is the sole accused in Crime

No.52 of 2004 of the Kottayam West Police Station seeks

an order quashing the charge sheet filed in C.P.No.3 of

2005 and the entire proceedings thereto pending before

the Judicial First Class Magistrate Court-III, Kottayam.

2. Though notice was ordered and received by the

second respondent, he had not chosen to appear before

this Court. I have heard the learned counsel for the

petitioner as well as the learned Public Prosecutor.

Initially, Crime No.52 of 2004 was registered in the

Kottayam West Police Station under the caption “man

missing” on the basis of the information furnished by the

second respondent regarding the missing of his minor

daughter on 28.1.2004. After registration of the crime,

the Police undertook the investigation and finally traced

out the detenue from Bangalore and produced before the

Magistrate concerned and subsequently produced before

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the Judicial First Class Magistrate Court-III, Kottayam.

On finalising the investigation, the Police filed a final

report before the court below. According to the Police,

since the alleged detenue was a minor at the time of the

registration of the crime and on subsequently realising

that the girl was kidnapped by the petitioner, they

incorporated Section 363A of I.P.C. On filing the final

report, the court below took cognisance and instituted

C.P.No.3 of 2005 before it. It is the above committal

proceedings and the final report being challenged and

sought to be quashed.

3. It is stated that while the investigation in

Crime No.52 of 2004 was pending, the second

respondent herein had approached this Court by filing

W.P.(Crl) No.49 of 2004 with a prayer to issue a writ of

habeas corpus directing the Police to produce the so-

called detenue. It is also stated that on 3.9.2004, the

detenue was produced before this Court and on realising

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the fact that the detenue went along with the petitioner

out of her volition and free will, this Court allowed the

detenue namely, the daughter of the second respondent

to go along with the petitioner. In support of the above

claims and averments, the petitioner has produced

Annexure-2 order of this Court in W.P.(Crl) No.49 of

2004. On a perusal of Annexure-2 order, it can be seen

that the detenue has stated before the Division Bench of

this Court that the fifth respondent who is the petitioner

herein had married her and she was three months’

pregnant at that time and she had attained the age of

18. It appears that the fifth respondent assured the

court that steps will be taken to conduct the marriage

under the Special Marriage Act. The grievance of the

second respondent in this Crl.M.C., who is the petitioner

in the writ petition, was that the marriage which was

conducted through Arya Samajam was not proper and

hence a proper marriage should be conducted. After

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recording all the above, this Court was pleased to

dispose of the writ petition and the girl was set free to

live along with the fifth respondent/petitioner herein or

according to her likes. By producing Annexure A3

marriage certificate issued under the provisions of the

Special Marriage Act, 1954, it is submitted that a

statutory marriage was arranged and now the petitioner

as well as the daughter of the second respondent are

living as man and wife and now they are undergoing a

happy family life and a child is born in their wedlock.

4. On the strength of the above developments

and the factual circumstances involved in the case, the

learned counsel for the petitioner submits that the

criminal proceedings against the petitioner are liable to

be quashed, otherwise it will adversely affect the marital

life of the petitioner as well as the daughter of the

second respondent and the continuation of the criminal

proceedings will amount to abuse of process of the

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court. Along with this Crl.M.C., the petitioner has

produced an affidavit of the daughter of the second

respondent viz., Rini Arun. In para 1 of the above

affidavit, it is stated that the allegations contained in the

charge sheet are absolutely baseless and she had

voluntarily gone out according to her own volition and

out of love with an intention to live along with the

petitioner. In para 2 of the affidavit, it is also stated that

she is residing along with petitioner as a legally married

wife and they had a very happy and peaceful married

life. It is also stated that a male child was born in their

wedlock. Therefore, according to the deponent, if the

proceedings in C.P.No.3 of 2004 are allowed to

continue, it will result in irreparable injury and hardship

which will ultimately affect the peaceful family life

which she pursues.

5. Going by the materials available on record

and the factual circumstances involved in the case, it

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appears that the dispute between the parties is now at

rest. As stated earlier, initially a crime was registered

for ‘man missing’ and finally, the Police filed a report

alleging offence punishable under Section 363 A of

I.P.C. Considering the subsequent development in the

matter, I am of the view that no purpose will be served if

the proceedings pending before the court below are

allowed to continue. Considering the fact that the

alleged detenue who is the daughter of the de facto

complainant is now residing along with the petitioner as

his legally married wife and a child was born out in their

wed lock, the criminal proceedings if are allowed to

continue, it will likely to adversely affect the marital life

of the petitioner as well as the daughter of the second

respondent. A perusal of Annexure A2 judgment would

show that at that time, the grievance of the second

respondent, the father of the alleged detenue was that

there was no proper marriage. The said grievance is

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seen to have redressed as evidenced by Annexure A3

Certificate of Marriage.

6. The Apex Court, in a decision reported in

B.S.Joshi v. State of Haryana (AIR 2003 SC 1386),

though the case was connected with the matrimonial

offences, it was held that Section 320 of the Code of

Criminal Procedure will not stand in the way to exercise

the powers of High Court under Section 482 to give

effect a genuine settlement, and it is the duty of the

court to see that such a genuine settlement is allowed to

materialise. Similarly, in a decision of a Division Bench

of this Court reported in Thankamma v. State of

Kerala (2006(3) KLT 846), though in that case, the

offence involved was Section 498A of the I.P.C., it was

held that for the ends of justice and to save the

institution of marriage, a settlement can be acted upon

and the inherent powers of Section 482 can be invoked

to compound an offence which is otherwise non-

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compoundable. Those decisions are to save the

institution of marriage and not to reopen the dispute so

as to disturb the marital bondage. In the light of the

above decision and the factual circumstance involved in

the case, I am of the view that the final report and the

committal proceedings instituted thereon and all further

proceedings thereto can be quashed for the ends of

justice.

In the result, the final report and C.P.No.3 of

2005 on the file of the Judicial First Class Magistrate

Court-III, Kottayam are quashed. The Crl.M.C. is

allowed.

V.K.Mohanan,
Judge

MBS/

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V.K.MOHANAN, J.

——————————————–

Crl.R.P.NO. OF 200

——————————————–

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J U D G M E N T

DATED: -2-2008

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