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2020 Supreme(Ker) 746
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.ANIL KUMAR, J.
Jeevan Joy, S/o. Joy – Appellant
Versus
State Of Kerala – Respondent
Crl.Rev.Pet.No.1519 of 2011
Decided on : 27-10-2020
Advocate Appeared:
For the Appellant : SRI.B.RAMAN PILLAI (SR.), SRI.GILBERT GEORGE CORREYA,
SRI.MADHU RADHAKRISHNAN
For the Respondent: SRI.M.S.BREEZ, SMT.K.ANILA
IMPORTANT POINT
An offence is not compoundable under Section 320 of the Cr.P.C. by itself is no reason for the High Court to refuse exercise of its powers under Section 482 of the Cr.P.C.
Headnote:
Indian Penal Code- Sections 120B, 366A, 376;; Criminal Procedure Code- Section 482 - Challenging Offences like murder, rape, dacoity, etc. cannot be quashed under Section 482 of the Cr.P.C. even though the victim and the accused have come to a compromise to settle the dispute out of court.
Statement of facts:
Whether under Section 209 of the Code of Criminal Procedure, Magistrate the committal was required to take cognizance of the offence triable by a court of session before committing the case to the court of session in accordance with law- Victims’s classmates committed rape on her at Mattannur in Kannur District-Registered Crime under Sections 120B, 366A, 376 of the Indian Penal Code- Challenging the above order of the learned Magistrate, the revision petitioner is before this Court
Finding of the court:
Allegation of rape should fall in the prohibited category and cannot be fittingly quashed even though the victim and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on the society. Hence, offences like murder, rape, dacoity, etc. cannot be quashed by this Court even though the victim and the accused have come to a compromise to settle the dispute out of court.
Result: Criminal revision petition is dismissed,
ORDER :
The important question arising for consideration in this criminal revision petition is as to whether under Section 209 of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C.'), the committal Magistrate was required to take cognizance of the offence triable by a court of session before committing the case to the court of session in accordance with law.
2. The facts leading to the case are hereunder:-
The additional 2nd respondent, the alleged victim in this case was arrested by the Central Police, Ernakulam for having involved in immoral trafficking on 22.9.2009. Later, she was produced before the Chief Judicial Magistrate Court, Ernakulam on 23.9.2009 and she was sent to Children's Home at Kakkanad. On being questioned, she had disclosed that her classmates committed rape on her at Mattannur in Kannur District. In the meantime, as per the directions of the Chief Judicial Magistrate, Ernakulam a suo motu crime was registered against the named three accused and 17 identified persons as Crime No.2220/2009 dated 10.10.2009 by the Central Police, Ernakulam under Sections 120B, 366A, 376 of the Indian Penal Code (hereinafter referred to as 'the IPC'). Later, finding that the alleged offence in this case took place within the jurisdiction of Cheranelloor Police Station, the crime was transferred to the said Police Station. Accordingly, the present crime was registered as Crime No.870/2009 of Cheranelloor Police Station on 11.10.2009 and the investigation of the case was entrusted with the Circle Inspector of Police, Ernakulam Town North Police Station. The allegation in Crime No.870/2009 is that accused 1 to 4 had entered into a criminal conspiracy after collecting money from the other 17 accused and had induced and compelled the victim to have intercourse with them against her will at different places on different dates. The revision petitioner, apprehending arrest in connection with the above crime, approached this Court in Bail Appln.No.7232/2009 and this Court granted anticipatory bail to the petitioner on 22.12.2009. The Investigating Officer conducted investigation and filed final report against the six accused including the revision petitioner as 4th accused.
3. On receipt of the final report, the learned Magistrate registered the case as C.P.No.7/2011 and passed an order on 25.1.2011 on the following terms:-
“Taken on file as C.P.No.7/2011 for the offences under Sections 120B, 366A, 323, 506(1), 376, 372, 373, 342 and 212 of the IPC. Issue summons to the accused.”
4. Challenging the above order of the learned Magistrate, the revision petitioner is before this Court.
5. Heard Sri.B.Raman Pillai, the learned Senior Counsel for the revision petitioner, Sri.M.S.Breez, the learned Senior Public Prosecutor for the 1st respondent-State and Smt.K.Anila, the learned counsel for the additional 2nd respondent.
6. Sri.B.Raman Pillai, the learned Senior Counsel for the revision petitioner contended that there is no material on record to show that the revision petitioner was involved in the case and the revision petitioner has no acquaintance with any of the accused in the case or with the alleged victim/additional 2nd respondent. The learned Senior Counsel further submitted that none of the documents in the final report shows that the revision petitioner is involved in the case. However, the police fixed the name of the revision petitioner as the 4th accused without any evidence on record. It is further contended that the learned Magistrate mechanically took cognizance of the offences aforesaid and issued process to the revision petitioner as 4th accused. Therefore, the order issuing process to the revision petitioner is sought to be set aside.
7. Per contra, Sri.M.S.Breez, the learned Senior Public Prosecutor submitted that under Section 209 of the Cr.P.C., the learned Magistrate was not required to take cognizance of the offence before committing the case to the court of session. It is further contended that the rev
