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2023 DIGILAW 320 (HP)

Takdir v. State of H. P.

2023-05-29

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. Heard. 2. By way of instant petition, a prayer has been made to quash FIR No. 43/2022, dated 19. 02.2022, registered at Police Station Paonta Sahib, District Sirmour, H.P., under Sections 363, 366, 376, 506 and 34 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”) and also the criminal proceedings in Sessions Trial No. 19/2022, titled as State of H.P. Vs. Takdir and Anr., pending before learned Additional Sessions Judge, SFTC (POCSO and Rape) Nahan, District Sirmour, H.P. 3. In Parbatbhai Aahir @ Parbatbhai Bhimsinghbhai Karmur and Others Vs. State of Gujarat and Another, (2017) 9 SCC 641 , Narinder Singh and Others Vs. State of Punjab and Another, (2014) 6 SCC 466 , State of Madhya Pradesh Vs. Laxmi Narayan and Others, (2019) 5 SCC 688 and lastly, in Ram Gopal Vs. State of M.P., (2021) SCC Online SC 834, the Supreme Court has elaborately expounded the scope of powers of this Court under Section 482 of the Code of Criminal Procedure, for the purposes of quashing of criminal proceedings on the basis of compromise between the parties in cases where the offence(s) involved are non-compoundable. 4. Thus, the legal proposition is well defined. Unless the cases fall in the excepted categories of heinous crimes delineated in aforesaid judgments, this Court in appropriate cases can quash such proceedings on the basis of compromise between the parties. 5. The case in hand belongs to a different category, where the offence alleged is not only of a rape on minor, but also involves the offences under POCSO Act. No doubt, the offences involved in the instant case are in the category of excepted offences declared in above noted judgments. However, the peculiar facts of the case as noticed hereafter require consideration so as to carve out yet another exception within the exception. 6. The facts of the case are that minor victim-respondent No.4 (hereinafter to be referred to as CV for the purposes of hiding her identity) was born on 01.01.2005. She has attained majority on 01.01.2023. However, when CV was 17 years and 2 months old, she of her own married petitioner No. 1 and thereafter started residing with him. The family of petitioner No. 1 accepted the relationship of petitioner with CV. She has attained majority on 01.01.2023. However, when CV was 17 years and 2 months old, she of her own married petitioner No. 1 and thereafter started residing with him. The family of petitioner No. 1 accepted the relationship of petitioner with CV. After the marriage, CV is residing in her matrimonial home without any complaint. 7. The elder sister of CV-respondent No. 5 had reported the factum of CV having eloped with petitioner No. 1 and on her complaint FIR No. 43 of 2022 was registered. Police investigated the FIR and report under Section 173 of Cr.P.C. was submitted. Petitioners are facing trial in Session Trial No.19 of 2022 before learned Special Judge, Nahan. Petitioner No. 2 is father of petitioner No. 1. 8. The family of CV at later stage has reconciled with the factum of CV having married petitioner No. 1. They have also accepted the relationship happily. 9. On 24.05.2023, both the petitioners and respondents No. 4 and 5 were present before this Court. Their separate statements were recorded. In addition, mother of CV Smt. Ratto Devi was also present and her statement was also recorded. CV, who has now attained majority, categorically stated that she had solemnized marriage with petitioner No. 1 on 16.02.2022. Thereafter, CV was residing in the house of her husband. She expressed her happiness and satisfaction over her married life. She does not have any complaint against petitioner or any of his family members. CV, did not want any prosecution of petitioners. Complainant-respondent No. 5 and mother of CV Smt. Ratto Devi also expressed their satisfaction over the relationship between petitioner No. 1 and CV. They have accepted their marriage. They also have no complaints against petitioners. Both of them stated that they had no objection in case FIR No. 43 of 2022 against petitioners and criminal proceedings arising therefrom are quashed. 10. In above circumstances, refusal to exercise jurisdiction in favour of the prayer made in the petition, will definitely prejudice the interest of all concerned. The societal implication arising from peculiar situation cannot be ignored. Long incarceration of petitioner will surely render the lives of CV, besides her parents and other family members in unfathomable misery. 10. In above circumstances, refusal to exercise jurisdiction in favour of the prayer made in the petition, will definitely prejudice the interest of all concerned. The societal implication arising from peculiar situation cannot be ignored. Long incarceration of petitioner will surely render the lives of CV, besides her parents and other family members in unfathomable misery. On the other hand, though the action of CV and petitioner may not qualify moral as well as legal approval, by quashing of criminal proceedings against petitioner, CV and petitioner will be able to live rest of their lives in peace. Inherent powers have been vested in this Court for purposes of serving ends of justice and such power though has to be used sparingly, will be rendered nugatory if not exercised in the facts of present case. 11. The Co-ordinate Bench of this Court while deciding a proposition akin to one involved in the present case in Cr.M.P(M) No. 164 of 2022, vide judgment dated 18.04.2022, has observed as under:- “15. It is a case where two societal interests are in clash. To punish the offender for a crime, involved in present case, is in the interest of society, but, at the same time, respondent-victim has solemnized marriage with petitioner Sonu and they have been blessed with a female child and are living happily and harmoniously and it is also in the interest of society to settle and re-settle the family for their welfare. Respondent No.3-complaiant Govind, father of victim has submitted that he intends to withdraw complaint as continuation of case shall adversely affect the future prospects of his daughter as well as her family life harming her interest as well as interest of the child.” 12. With above observations, the petition for quashing of a case involving provisions of POCSO Act, was ordered to be quashed, on the basis of compromise. 13. In almost identical facts High Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal Misc. (Pet.) No. 6323 of 2022, decided on 13.10.2022, has ordered the quashing of Criminal Proceedings involving offences under Section 376 of Indian Penal Code and Sections 3 and 4 of the Protection of Children from Sexual Offences Act. The reasons that weighed with learned Court are being reproduced as under:- “13. (Pet.) No. 6323 of 2022, decided on 13.10.2022, has ordered the quashing of Criminal Proceedings involving offences under Section 376 of Indian Penal Code and Sections 3 and 4 of the Protection of Children from Sexual Offences Act. The reasons that weighed with learned Court are being reproduced as under:- “13. This Court is not oblivious of the legal position that in cases concerning sexual act with a minor, consent, if any, has no legal sanctity and it cannot be used as a defence. Needless to mention that this Court cannot and does not accord any approval or sanction to the sexual act of petitioner with the prosecutrix but then, it is a hard reality that their love affair has traversed beyond the legal and moral bounds, consequence whereof has begotten a child. 14. This Court cannot be a silent spectator to or turn its back on the distressed family. If the impugned FIR is not quashed, the petitioner will have to face incarceration for at least 10 years. The mistake or blunder which otherwise constitutes an offence has been committed due to immature act and uncontrolled emotions of two persons, out of whom, one is still a minor. 15. The petitioner’s prosecution and conviction will lead to pain and tears in the eyes of the family members of both the parties and future of two families, and above all, an innocent child will be at stake, whereas, if the impugned FIR is quashed, it would serve the ends of justice. 16. It is to be noted that in almost similar circumstances, different High Courts have quashed the FIR/proceedings. The following are to mention a few:- (i) Vijayalakshmi & Anr. Vs. State & Anr. (Crl.M.P. No.109/2021), decided on 27.01.2021 by Hon’ble High Court of Madras; (ii) Kundan & Anr. Vs. State & Ors. (Crl.M.C. No.27/2022), decided on 21.02.2022 by Hon’ble High Court of Delhi; (iii) Shri Skhemborland Suting & Anr. Vs. State of Meghalya and Anr. (Crl. Petition No.63/2021), (5 of 6) [CRLMP-6323/2022] decided on 23.03.2022 by Hon’ble High Court of Meghalya. 17. Different High Courts have given different reasoning’s dealing with medical, psychological, social angles of the situation; analyzing the statement of objects and reasons of the POCSO Act; considering practical realities including future of the newborn child involved. 18. State of Meghalya and Anr. (Crl. Petition No.63/2021), (5 of 6) [CRLMP-6323/2022] decided on 23.03.2022 by Hon’ble High Court of Meghalya. 17. Different High Courts have given different reasoning’s dealing with medical, psychological, social angles of the situation; analyzing the statement of objects and reasons of the POCSO Act; considering practical realities including future of the newborn child involved. 18. This Court feels that it is a fit case to exercise its inherent powers under Section 482 of the Code for quashing the FIR to secure the ends of justice, because:- (i) an adolescent girl of tender age (16 years) has fallen in love with a boy of 22 years; (ii) both being immature, apparently driven by momentary emotions have fallen prey to lust, surpassing social, moral and legal limits; (iii) the complainant is the police and the girl or her family are neither aggrieved party nor complainant; (iv) the girl has been consistent in her stand that she consented to the physical relationship. Not only in her statements under Section 161 and Section 164 of the Code but also before this Court, the girl unequivocally accepted that she had consented to the act; (v) their fornication though may be without legal and moral sanction, has resulted in child birth; (vi) parents of both – the girl and the boy having forgiven their respective children for their felony, intend to tie them in nuptial knot, when the prosecutrix attains marriageable age; (6 of 6) [CRLMP-6323/2022] (vii) if the prosecution continues, the petitioner is sure to face conviction, as the girl is minor. The conviction will result in 10 years of incarceration which would bring more agony and misery to the girl and her newly born son, rather than securing justice; (viii) and also because, the basic ingredient of retributive theory of punishment -”avenge for the person wronged” is completely absent.” 14. The view taken by High Court of Judicature for Rajasthan at Jodhpur in above noted case, has not been disturbed or set-aside by Hon’ble Supreme Court and the Special Leave to Appeal (Cr.L) No(s). 1890 of 2023 filed by the State of Rajasthan, has been dismissed, vide order dated 03.03.2023. 15. The view taken by High Court of Judicature for Rajasthan at Jodhpur in above noted case, has not been disturbed or set-aside by Hon’ble Supreme Court and the Special Leave to Appeal (Cr.L) No(s). 1890 of 2023 filed by the State of Rajasthan, has been dismissed, vide order dated 03.03.2023. 15. Having thoughtfully considered the implications arising in the peculiar facts of the case, I am of the view that the interest of justice will be well served by putting an end to the criminal proceedings faced by petitioner as a result of legal consequences of immature and probably unintentional action on the part of the petitioner and CV. 16. In light of above discussion, the instant petition is allowed. FIR No. 43/2022, dated 19.02.2022, registered at Police Station Paonta Sahib, District Sirmour, H.P., under Sections 363, 366, 376, 506 and 34 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”) and also the criminal proceedings in Sessions Trial No. 19/2022, titled as State of H.P. Vs. Takdir and anr., pending before learned Additional Sessions Judge, SFTC (POCSO and Rape) Nahan, District Sirmour, H.P., are ordered to be quashed. 17. Pending miscellaneous application(s), if any, shall also stand disposed of.