Kerala High Court recalls three orders in which it had quashed POCSO, rape cases on the basis of settlement between parties

In an interesting development, the Kerala High Court on Wednesday sou motu recalled three of its previous orders in which it had quashed cases under Protection of Children from Sexual Offences Act and rape on the ground that the accused and complainant had arrived at settlement..Two of the three cases involved POCSO Act since the prosecutrix were minors at the time of commission of offence. One was a case of rape..Justice K Haripal had quashed the cases invoking Section 482 Code of Criminal Procedure after it was brought to the notice of the Court that the petitioners who were the accused in the crime had settled the matter with the respective defacto complainant/prosecutrix..However, on Wednesday the judge said that he had failed to notice the Supreme Court judgment in Gian Singh v. State of Punjab [2012(4) KLT 108], in which the top court had held that heinous and serious offence of mental depravity or offences like murder, rape, dacoity etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute..“At the time of passing the said orders, this Court (High Court) had not noticed the decision of the Hon'ble Supreme Court in Gian Singh v. State of Punjab and Another [2012(4) KLT 108], where it is specifically held that while invoking the jurisdiction under Section 482 of the Cr.P.C., the prime consideration should be to secure ends of justice, to prevent abuse of the process of court. The court has also stated that heinous and serious offence of mental depravity or offences like murder, rape, dacoity etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute,” the order passed on Wednesday said..This aspect was reiterated by the Supreme Court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur v. State of Gujarat and also in State of Madhya Pradesh v. Laxmi Narayan, the Court noted.“In the subsequent two decisions, it has been stated that whenever offences of murder, rape, dacoity etc., are alleged, the court shall not invoke its jurisdiction under Section 482 of the CrPC, on the ground that the matter was settled between the parties,” the order said..The judge also clarified that at the time of passing of the three orders, he had followed the dictum in the 2008 judgments in Manoj Sharma v. State and Madan Mohan Abbot v. State of Punjab [, wherein it was held that when the parties reach a settlement on their own, ordinarily the court shall not refuse to exercise its jurisdiction under Section 482 of the Cr.P.C. or Article 226 of the Constitution of India.“But in the decisions of the Hon'ble Supreme Court starting from Gian Singh, it has been categorically held that offences in the nature of murder, rape and dacoity shall not be considered for quashing the proceedings, in the light of settlement stated before court, invoking jurisdiction under Section 482 of the CrPC,” the Court underscored..The Court also turned down the arguments of the petitioners that once the orders are pronounced and signed by the High Court, it cannot review the orders subsequently. “The argument cannot be accepted for the reason that these cases are called today not to review the orders but to point out the omission to note the law laid down by the Apex Court which is binding on this Court. In other words, this is not an attempt to review the earlier orders, so that the bar under Section 362 of the CrPC cannot be attracted. The Supreme Court has made it clear that a recall order is distinct from a review of order, that a recall cannot be refused by strictly applying provisions of Section 362 of the CrPC,” the Court said..It, therefore, ruled that the previous orders allowing the Criminal Miscellaneous Cases are recalled, suo motu..It added that the three cases would require serious consideration and detailed hearing.“I have no doubt that these matters require serious consideration and detailed hearing. Therefore, the cases will be posted as per roster, immediately after re-opening, after the summer vacation,” the Court ordered..[Read Order]