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2022 DIGILAW 118 (KER)

Salih S/o Hydrose v. State of Kerala

2022-02-03

KAUSER EDAPPAGATH

body2022
ORDER : 1. This Crl. M.C. has been filed to quash the final report in S.C. No. 59/2009 on the files of the 1st Additional Assistant Sessions Court, Thrissur. 2. The petitioners are the accused Nos. 1 to 3. The victims were initially arrayed as the respondents 2 to 5. The respondent No. 5 entered appearance. But in spite of repeated efforts, service to the respondent Nos. 1 to 4 could not be completed. Notice sent to them were returned as “not known.” Hence, the petitioners filed Crl. M.A. No. 1/2022 to delete them from the party array. It was allowed and the respondent Nos. 2 to 4 were deleted from the party array. 3. The offences alleged against the petitioners are under Section 366 read with Section 34 of IPC. 4. The prosecution case in short is that on 14.12.2007 at about 10 p.m. the petitioners compelled CW-2 to CW-4 to have unlawful sexual intercourse with them and thereby committed the offence. 5. According to the petitioners, even if the entire allegations in the FIR together with other materials collected during investigation are taken at face value, they do not constitute the offences alleged. It is in these circumstances, the petitioners have filed this petition to quash the entire proceedings invoking Section 482 of Cr.P.C. 6. I have heard Sri. Thomas J. Anakkallunkal the learned counsel for the petitioners and Smt. M.K. Pushpalatha, the learned Public Prosecutor. 7. The learned counsel for the petitioners submits that a reading of the FIS as well as the statement given by CW-2 to CW-4 would show that no offence under Section 366 of IPC is made out against the petitioners and all further proceedings as against the petitioners is nothing but sheer abuse of the process of law. In support of his submission, the learned counsel relied on the decision of the Supreme Court in Kavitha Chandrakant Lakhani vs. State of Maharashtra and Another, 2018 KHC 6331. 8. I went through the final report which has been produced with the Crl. M.C. The FIS as well as the statement of the witnesses indicates that the victims were not abducted nor were they coerced to travel in the vehicle. The records would show that the victims went voluntarily with the accused to the house wherein the alleged incident took place. Admittedly, the victims are majors. M.C. The FIS as well as the statement of the witnesses indicates that the victims were not abducted nor were they coerced to travel in the vehicle. The records would show that the victims went voluntarily with the accused to the house wherein the alleged incident took place. Admittedly, the victims are majors. In order to constitute the offence of “abduction” a person must be carried off illegally by force or deception, that is, to compel a person by force or deceitful means to induce to go from one place to another. Such a case is absent in the prosecution records. In Kavitha Chandrakant Lakhani (supra), it was held that for a charge under Section 366 of IPC, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Such kind of allegations are also absent in the final report. Even as per the prosecution version, there is no allegation of kidnapping or abduction of the victims. On the other hand, they voluntarily went to the house where the incident took place. There is also no case for the victims that they were in any manner compelled to intercourse so as to constitute the ingredients of Section 366 of IPC. In short, the very nature of allegations raised in the final report when considered in the light of attending circumstances, it is apparent that the essential ingredients to attract the offence under Section 366 of IPC is absent. When prima facie offence under Section 366 of IPC is not laid, proceeding with the case would be nothing but abuse of process of law. 9. Accordingly, the Crl. M.C. stands allowed. The entire proceedings in Annexure-1 final report in S.C. No. 59/2009 on the files of the 1st Additional Assistant Sessions Court, Thrissur stands hereby quashed.