While taking the most pragmatic stand and espousing its firm opposition to giving its green flag to settle heinous case of rape by agreement, the Kerala High Court in a remarkable, robust, rational and recent judgment titled Abdul Jaleel vs State of Kerala & Anr in Crl.MC No. 401 of 2020 and Crime No.828/2018 of Irinjalakuda Police Station, Thrissur and cited in Neutral Citation No. : 2024:KER:62688 and which was finally heard on 1.08.2024 and then pronounced just recently on August 12, 2024 has minced absolutely just no words to hold in no uncertain terms most unequivocally that an agreement between a complainant and accused to settle a rape case is void as it is opposed to public policy.
It merits no reiteration that a rape is a rape and it cannot be justified or condoned under any circumstances as that would tantamount to legitimizing it by first committing it fearlessly and then by agreement escaping the long arms of the law which is most reprehensible and definitely deserves zero tolerance which is exactly what the Kerala High Court has sought to do in this leading case for which it deserves to be commended. It must be mentioned here that a Single Judge Bench comprising of Hon’ble Mr Justice A Badharudeen therefore after perusing the facts and material before it and considering the evidence on record deemed it apt to decline to quash the rape case on the basis of an agreement to settle the matter between the victim and the rape accused. Very rightly so!
At the very outset, this learned, laudable, landmark, logical and latest judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice A Badharudeen sets the ball in motion by first and foremost putting forth in para 1 that:
This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure (‘Cr.P.C’ for short), by the sole accused in Crime No.828/2018 of Irinjalakuda Police Station seeking the following relief's:
- Call for the original of Annexure A3 Final Report in Crime No.828/2018 of Irinjalakkuda Police Station and all further records leading to it and pursuant thereto, peruse the same, hear the petitioner and quash the said Annexure A3 Final Report, Annexure A1 F.I.R, and all further proceedings in the same crime.
- To pass such orders and directions as may be necessary to secure the interest of justice and to prevent abuse of process of law.
- To grant such other and appropriate relief/reliefs as the petitioner may pray for from time to time and which this Hon’ble Court deems fit and proper to grant in the interest of justice.
- To effectively mould the remedy and grant such relief/reliefs as the ends of justice demand.
To put things in perspective, the Bench envisages in para 3 that:
The prosecution allegation is that at about 11 a.m on 13.03.2016, the accused herein, who was the Assistant Secretary of Vellangallur Grama Panchayat, subjected the defacto complainant, who also was an employee of the said Panchayat, to rape when she reached the office. On this background prosecution alleges commission of offence punishable under Section 376(2)(b)(n) of IPC, by the accused.
Do note, it is no ordinary matter that the Bench notes in para 6 that:
In view of the rival submissions, I have gone through the FIS given by the defacto complainant which led to registration of this crime. The defacto complainant would say that she was married and living separately from her husband for the last 23 years. While she was working as an employee of the Vellangallur Panchayat office, the accused compelled her to do job along with him and disturbed her from doing her assigned job. Accordingly, she lodged complaint to the Secretory and the Secretary responded that in an office all works to be done. At 11 a.m on 13.03.2016 on a Sunday, she was brought to the office to clear some urgent work. When she reached the office, the accused taken her to the office room forcefully and subjected her to sexual intercourse despite her resistance and she escaped therefrom. She did not disclose the same due to fear and when she felt pain she met Doctor at K.J.Hospital, Kodungalloor, and the accused therein offered to marry her. Thereafter, on the promise of marriage, he continued the sexual assault.
As it turned out, the Bench enunciates in para 7 that:
In so far as the incident on 13.03.2016, the same could not be held as one arose out of consent, prima facie, as rightly pointed out by the learned Public Prosecutor. Therefore, this is a matter where trial is necessary so as to permit the prosecution to adduce evidence.
As we see, the Bench then stipulates in para 8 that:
Coming to Annexures-A4 and A5, pointed out as aid to quash the proceedings, its legality is a matter of discussion. That is to say, what is the stature of an agreement executed to settle public offence/offences such as murder, rape and atrocities against children?
Be it noted, the Bench notes in para 9 that:
In this context it is relevant to refer Section 23 of the Contract Act, which reads as under:
Section 23 says that the consideration or object of the agreement is unlawful if it is fraudulent. If the plaintiff cannot make out his case except through an immoral transaction to which he was a party, he must fail. An agreement to pay a certain sum of money to a prostitute for cohabitation is void.
While citing a renowned and relevant case law, the Bench hastens to add in para 10 stating that:
In the decision reported in [1991 KHC 1046], Union Carbide Corporation and Ors. v. Union of India & Ors., the Constitution Bench of the Apex Court dealt with the nature of contract with unlawful consideration in paragraph 60 and held specifically as under, after referring to earlier decisions of the Apex Court on this point:
60. Besides as pointed out by this court in Narasimha Raju v. V.Gurumurthy Raju [1963 (3) SCR 687 : AIR 1963 SC 107], the consequence of doctrine of stifling of prosecution is attracted, and its consequences follow where a person sets the machinery of criminal law into action on the allegation that the opponent has committed a non compoundable offence and by the use of this coercive criminal process he compels the opponent to enter into an agreement, that agreement would be treated as invalid for the reason that its consideration is opposed to public policy. (See page 692 (of SCR) : (at p.109 of AIR) of the report). In that case this court further held that the doctrine applies when as a consideration for not proceeding with a criminal complaint, an agreement is made, in substance it really means that the complainant has taken upon himself to deal with his complaint and on the bargaining counter he has used his non prosecution of the complaint as a consideration for the agreement which his opponent has been induced or coerced to enter into. (Emphasis added). These are not the features of the present case.
Most significantly and to put it briefly, the Bench observes in para 11 that, In the decision reported in [1967 KHC 38 : 1965 KLT 19 : 1966 KLJ 730 : AIR 1967 Ker. 51 : 1967 KLR 323], Parameswaran Pillai v. Kudamanoor Regional Service Cooperative Society, this Court considered the essential requirement of an agreement to stifle prosecution and the required factors, in order for Section 23 of the Contract. In paragraphs 8 and 9, this Court held as under:
8. The revisional authority, it is said, proceeded on the basis that the agreement to stifle prosecution must be seen from the face of the agreement. This also, it is said, is a clear mis-conception of law. I am inclined to accept this argument and I am supported by very high authority in coming to the conclusion that there is mis-conception of law. The Judicial Committee of the Privy Council had occasion to consider both these aspects as to whether at the time of the execution of an agreement there should have been a prosecution in existence in order that the mischief of S.23 of the Contract Act may be attracted and also the further question as to whether it must be seen from the agreement itself that it was for stifling prosecution. The decision is in Kamini Kumar Basu and others v. Birendra Nath Basu and another (reported in AIR 1930 Privy Council 100) and the relevant passage is this:
It may quite well be that a prosecution only commences after a summons is issued, and that before that stage is reached a complainant cannot be said to have dropped a prosecution under Code: see Golap Jan v. Bholanath (1911 38 Cal 380). Their Lordship are not called upon to express any opinion on this point, nor are they doing so. The real question involved in this appeal on this part of the case is whether any part of the consideration of the reference or the ekrawama was unlawful, and not whether any prosecution within the meaning of the Criminal Procedure Code had been started or dropped. If it was an implied term of the reference or the ekrarnama that the complaint would not be further proceeded with, then in their Lordships’ opinion the consideration of the reference or the ekrarnama as the case may be, is unlawful: see Jones v. Merionethshire Permanent Benefit Building Society (1892) 1 Ch. 173) and the award or the ekrarnama was invalid, quite irrespective of the fact whether any prosecution in law had been started.
9. In regard to the other aspect as to whether an agreement to compound a non compoundable offence or an agreement to stifle prosecution must be seen from the face of the agreement, Their Lordship observed:
In a case of this description it is unlikely that it would be expressly stated in the ekrarnama that a part of its consideration was an agreement to settle the criminal proceedings. It is enough for the defendants to give evidence from which the inference necessarily arises that part of the consideration is unlawful.
Thus it is well settled law that any agreement or contract would be void for the reason that if its consideration is opposed to public policy. In the same manner, contract or agreement for withdrawing from prosecution is nothing but stifling the prosecution involving public offence and the same also is opposed to public policy.
Equally significant is what is then pointed out in para 12 holding that:
Having gone through Annexures A4 and A5 agreements placed to support the settlement in between the defacto complainant and the accused, the same are intended for stifling the prosecution in a serious offence of rape. Therefore, the same are illegal and cannot be considered as the sole basis to quash the proceedings.
As a corollary, the Bench then directs in para 13 mandating that:
In view of the above discussion, the prayer in this petition is liable to be dismissed. Hence this Crl.MC stands dismissed.
Finally, the Bench then aptly concludes by directing in para 14 and stating that:
Interim order, if any, granted, shall stand vacated.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
