Delhi High Court - Orders
Karan S/O Balbir R/O House No. 118, Nsci ... vs State Of Gnctd ..... Respondent No.1 K ... on 9 November, 2022
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
1
$~59
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. M.C. 5777/2022 & Crl.M.A. 22729/2022
KARAN
S/O BALBIR
R/O HOUSE NO. 118,
NSCI CLUB STAFF QUARTER, PURANA KILA,
NEW DELHI 110001 .....PETITIONER
Through: Mr.Himanshu Kaushik, Dr.Harish
Kaushik, Advocates alongwith petitioner in
person.
Versus
STATE OF GNCTD
..... RESPONDENT NO.1
K
D/O SH. S
R/O XYZ
NEW DELHI
..... RESPONDENT NO.2
Through: Mr.Pradeep Gahalot, APP for
State.
Ms.Sonam Jain, Mohd.Mohsin Raja and
Ms.Priyanka Sharma, Advocates for R-2
along with R-2 in person.
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
ORDER
% 09.11.2022
1. By way of the present petition, the petitioner seeks quashing of FIR Signature Not Verified Signed By:PRIYA Signing Date:15.11.2022 18:38:20 2 No.479 of 2021 under Sections 363/366/376 of the IPC & Section 6 of the Prevention of Child from Sexual Offence Act, 2012 (POCSO) registered at Police Station Pul Prahladpur, Delhi and the proceedings emanating therefrom.
3. The petitioner and respondent No. 2 are present in the Court and they have been identified by the Investigating Officer and their respective counsel.
4. A perusal of the facts would show the father of respondent No.2/prosecutrix lodged a complaint of his missing daughter. Thereupon, on 30.10.2021, the aforesaid FIR was registered against the petitioner.
5. On 21.09.2022, respondent No.2 was found and the statement under Section 161 of the Cr.P.C. was recorded where she stated that she voluntarily went with the petitioner and got married. She also stated that voluntarily made physical relations with the petitioner and gave birth to a baby boy on 23.08.2022.
6. The petitioner was thereafter arrested. However, vide order dated 20.10.2022, passed by the competent court, he was released on bail.
7. The petitioner and respondent No.2 jointly state that they are living happily as husband and wife without any grievance against each other and respondent No.2 does not want any action against the petitioner in view of the fact that she voluntarily joined company of the petitioner.
7. On the basis of the aforesaid facts, learned counsel appearing on behalf of the petitioner submits that under the peculiar facts and circumstances of this case it would be appropriate to exercise power under Section 482 of the Cr.P.C. to ensure that no further injustice shall occur to Signature Not Verified Signed By:PRIYA Signing Date:15.11.2022 18:38:20 3 respondent No.2 and her baby boy. According to him, since the parties are living peacefully, and the relation between them were not on account of any force or pressure, therefore, in the interest of justice the FIR in question and all proceedings emanating therefrom be quashed.
8. Learned counsel appearing on behalf of the petitioner places reliance on a decision of the Hon'ble Supreme Court in the case of K Dhandapani v. State by the Inspector of Police 1 and the decision of this court in the case of Shiv Kumar Kushwaha & Anr v. State2 and Kundan & Anr. v. State & Ors.
9. Learned APP for the State however, opposed the prayer and states that in the present case, offence under Section 376 of the IPC and Section 6 of POCSO Act has been registered against the petitioner and whether respondent No.2 had voluntarily consented for sexual relations with the petitioner has no relevance. According to him, the consent of respondent No.2 is of no help to the petitioner as she was less than 18 years of age. He places reliance on a decision of this court in the case of Shiv Kumar Khuswaha(supra) and the decision of the Hon'ble Supreme Court in the case of State of Madhya Pradesh v. Laxmi Narayan and others. 3
10. I have learned counsel appearing for the parties and perused the record.
11. The facts of the case reveal that at the time of incident the petitioner was aged about 21 years and respondent No.2 was aged about 17 and a half years. Respondent No.2 got married with the petitioner on 31.10.2021. She herself stated in her statement that the marriage was on account of her own 1 2022 SCC OnLine SC 1056 2 Crl.M.C. 3153/2019 3 (2019) 5 SCC 688 Signature Not Verified Signed By:PRIYA Signing Date:15.11.2022 18:38:20 4 free will. Even in her statement under Section 164 of the Cr.P.C. she confirms her version to the fact that she voluntarily made physical relations with the petitioner and married him on account of her own free will. She in fact stated that she was in love with the petitioner and therefore according to her no offence has been committed by the petitioner. It is also admitted by the parties that they are living together as husband and wife with their newly born baby child.
12. It is true that the High Court in exercise of power under Section 482 of the Cr.P.C. should be slow for quashment of FIR where offence under Section 376 of the IPC or offences under the POCSO Act are alleged. The Hon'ble Supreme Court in the case of State of Madhya Pradesh(supra) in paragraph No.13 has specifically observed that the power conferred under Section 482 of the Cr.P.C. to quash the criminal proceedings for the non- compoundable offence under Section 320 of the Code, can be exercised in cases having overwhelming and predominantly a civil character, particularly those cases which are arising out of a commercial transaction or arising out of a matrimonial relationship or family dispute and when the parties have resolved the entire dispute among themselves.
13. It has also been stated by the Hon'ble Supreme Court that such powers are not to be exercised in cases where the offences are of heinous nature, shows facts of mental depravity or offences like murder, rape, dacoity etc. Hon'ble Supreme Court also directed that such power is not to be exercised for the offences under the special statute like Prevention of Corruption Act or the offences committed by public servant. The Hon'ble Supreme Court has further held that the offences under Section 307 of the Signature Not Verified Signed By:PRIYA Signing Date:15.11.2022 18:38:20 5 Cr.P.C. would fall in the category of heinous and serious offences and therefore, power under Section 482 of the Cr.P.C. should not be exercised to quash such an offence.
14. This court has also considered the facts involving the case of K Dhandapani(supra) where the appellant was convicted for offence under Section 5(j)(ii) read with Section 6,5(i) read with section 6 & 5(n) read with Section 6 POCSO Act and he was convicted for the said offences and sentenced to undergo rigorous imprisonment for a period of 10 years by the sessions court. The Hon'ble Supreme Court under the peculiar facts of that case set aside the conviction of the appellant. The Hon'ble Supreme Court had taken note of the subsequent event such as the fact that prosecutrix was a minor at the time of the incident however, she gave birth to a child when she was 15 years of age and later on she gave birth to a second child when she was 17 years of age. It was also taken note that the appellant got married to the prosecutrix and they were living together peacefully. The Hon'ble Supreme Court had noted that the prosecutrix was living a happy married life with her two children and was being taken care of by the appellant thereof. No doubt, the Hon'ble Supreme Court exercised power under Article 142 of the Constitution of India.
15. The facts involved in the case of Kundan and Ors.(supra) would further show that initially in FIR under Section 363 of Cr.P.C. was registered against the accused therein. Later on offence under Section 366 and 376 of the Cr.P.C. and Section 67 of the POCSO Act was added. The facts in the case of Kundan and Ors.(supra) are almost similar to the facts involved in the present case. A coordinate bench of this court in the case of Signature Not Verified Signed By:PRIYA Signing Date:15.11.2022 18:38:20 6 Kundan and Ors.(supra) has held that the High Court must show restraint in quashing FIR for offences under Section 376 of the IPC and POSCO Act, however taking into consideration the fact that respondent No.2 in her statement under Section 164 of the Cr.P.C. stated that she was in love with the petitioner and she eloped with him out of her own free will. She also stated that they married in a temple and she had given birth to a boy.
16. Having considered the submissions made by the learned counsel appearing on behalf of the parties and the fact that respondent No.2 is living happily with the petitioner, she has given birth to a baby boy, and also the fact that the marriage has been accepted by their family members, this court under the peculiar circumstances finds it appropriate to quash the FIR No.479 of 2021 under Sections 363/366/376 of the IPC & Section 6 of the POCSO Act registered at Police Station Pul Prahladpur, Delhi and the proceedings emanating therefrom.
17. Petition stands disposed of.
PURUSHAINDRA KUMAR KAURAV, J.
NOVEMBER 09, 2022/MJ Signature Not Verified Signed By:PRIYA Signing Date:15.11.2022 18:38:20