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2016 DIGILAW 1786 (HP)

Dev Raj v. State of Himachal Pradesh

2016-08-26

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. By medium of this petition under Section 482 of the Code of Criminal Procedure, the petitioner has sought quashment of FIR No. 41 of 2008 dated 23.2.2008 registered with the Police Station, Baijnath, District Kangra, H.P. under Section 376 IPC and has further prayed for quashing proceedings in S.C. No. 03-B/VII/2016 titled as State of H.P. vs. Dev Raj pending before the learned Additional Sessions Judge-III, Kangra at Dharamshala. 2. The facts leading to the present case are that respondent No.2 on 23.2.2008 had filed a complaint in Police Station, Baijnath, District Kangra, H.P. in which it was alleged that she was in love with the petitioner right from the time when she was 14-15 years. The petitioner used to write letters to her and slowly they fell in love. In the year, 2007 while the parents of the respondent No.2 were not at home, the petitioner came to her house and proposed/promised to marry her and after some time even committed sexual intercourse with her and went away. This incident was not narrated by respondent No.2 to anyone. Even thereafter the petitioner on 2-3 occasions indulged in the same act. However, when the respondent No.2 did not have menstrual cycle, she realised that she was pregnant. She then contacted the petitioner, but he did not talk to her. After two months, the petitioner came again to her house and gave some medicines and instructed her to take these medicines on the promise that everything would be sorted out thereafter. Respondent No.2 took those medicines, but fetus did not abort. On 24.11.2007, an agreement was executed between the father of respondent No.2 and father of the petitioner in which it was agreed that son of the petitioner would solemnize marriage with respondent No.2 within three months or else legal action would be taken against the petitioner. 3. It is due to misunderstanding that the aforesaid FIR came to be registered against the petitioner under the aforesaid section. However, the petitioner true to his commitment solemnized marriage with the respondent No.2 within six days of the lodging of the FIR i.e. on 29.2.2008 at Baba Sharda Sidh Bhagti Mandir Ashram, Rajpur, Tehsil Palampur, District Kangra, H.P. The copy of affidavits dated 29.2.2008 alongwith the marriage certificate has been annexed with the petition as Annexures P-3 and P-4, respectively. However, the petitioner true to his commitment solemnized marriage with the respondent No.2 within six days of the lodging of the FIR i.e. on 29.2.2008 at Baba Sharda Sidh Bhagti Mandir Ashram, Rajpur, Tehsil Palampur, District Kangra, H.P. The copy of affidavits dated 29.2.2008 alongwith the marriage certificate has been annexed with the petition as Annexures P-3 and P-4, respectively. It would be noticed that out of the wedlock as on date three daughters namely Anshiks, Vanshika and Neetu have been born and the petitioner and respondent No.2 are happily residing as husband and wife. 4. Notably, the prosecution itself had presented a cancellation report which has not been accepted only on the ground that subsequent marriage by the culprit with the victim does not absolve him from the criminal liability and such subsequent event are only relevant to determine the quantum of sentence. I cannot persuade myself to agree with the reasoning accorded by the learned Magistrate and otherwise see no reason why the prosecution should continue. 5. On interacting with the victim of offence, I find that she in fact had made a complaint on some misapprehension probably because of the social pressure so as to protect her honour and reputation lest she be an unmarried mother. It has been established on record that the parties were in love with each other and it was only on account of misunderstanding that they could not immediately get married, but had got married thereafter and now have three issues. In fact, it was within the six days of registration of the FIR that the parties had got married. 6. The respondent No.2, who has appeared in person and has been identified as such by Ms. Seema K. Guleria, Advocate, has clearly stated that she is living happily with her husband alongwith her three minor children. Respondent No.2 categorically stated that she had come to terms quite voluntarily in the interest of her future, and she apprehends that if the prosecution continues, or if she is exposed to a trial process, it would definitely defile her future life and happy matrimony. 7. I am convinced after interacting with the victim and perusal of the material on record that it is in fact not a case of forcible sexual intercourse and was a consensual act as the petitioner and respondent No.2 had repeatedly indulged in such activity. 7. I am convinced after interacting with the victim and perusal of the material on record that it is in fact not a case of forcible sexual intercourse and was a consensual act as the petitioner and respondent No.2 had repeatedly indulged in such activity. Now, when the whole dispute stands resolved for forever, the law cannot be such which would stand between the parties or their children who are happily residing. The law has to secure the future of the parties and the children or else, it will cause irreparable harm, hardship and may even tarnish and spoil the reputation of the parties and their families. 8. Looking at the case from another angle, as the respondent No.2-prosecutrix has performed marriage with the petitioner, there is no possibility of her supporting the charge in case the petitioner is put to trial. Therefore, in such circumstances, the continuation of the criminal proceedings would only cause untoward torture and harassment apart from creating undue social and psychological pressure over the parties whereby the respondent No.2 would be called in the witness box to depose against her husband but in all probability, she would not support the prosecution case. Hence, there is not only remote or bleak but rather no possibility of the criminal proceedings culminating in the judgment of conviction even if permitted to proceed with. The continuation of criminal proceedings may result in marital disharmony which is not in the interest of the society and also the parties as three children have been born out of the wedlock. 9. Coming to the merits of the case, it would be noticed that no doubt Section 376 IPC has been added against the petitioner but then, as I have already observed earlier that there was love affair between the petitioner and respondent No.2 and they wanted to marry each other but due to some misunderstanding between them, the marriage could not be performed at that time and was performed within six days of the FIR. Not only this, the parties are living together and even have three children. As such, Section 376 IPC does not survive. Not only this, the parties are living together and even have three children. As such, Section 376 IPC does not survive. The step taken by the family members of petitioner and respondent No.2 by accepting their marriage is the best way to save not only their future lives but the lives of their three minor daughters so as to enable them to lead a life with respect and dignity in the society. 10. In Madan Mohan Abbot vs. State of Punjab, (2008) 4 SCC 582 , the Hon’ble Supreme Court emphasized and advised as under: “We need to emphasise that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the court should ordinarily accept the term of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.” 11. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed and FIR No. 41 of 2008 dated 23.2.2008 registered with the Police Station, Baijnath, District Kangra, H.P. under Section 376 IPC alongwith further proceedings in S.C. No. 03-B/VII/2016 titled as State of H.P. vs. Dev Raj pending before the learned Additional Sessions Judge-III, Kangra at Dharamshala, against the petitioner, are ordered to be quashed. Interim order granted on 21.7.2016, is vacated. The petition is disposed of in the aforesaid terms, so also the pending applications if any.