Calcutta High Court (Appellete Side)
Sk. Naimuddin @ Raj vs The State Of West Bengal & Ors on 8 December, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 1847 of 2020
Sk. Naimuddin @ Raj
Vs
The State of West Bengal & Ors.
For the Petitioner : Mr. Maloy Bhattacharya,
Mr. Pradip Paul,
Ms. Renesa Dey.
For the State : Mr. Binay Panda,
Ms. Rita Dutta.
For the Opposite Parties : None.
Hearing Concluded on : 30.11.2023
Judgment on : 08.12.2023
2
Shampa Dutt (Paul), J.:
1. The present revision has been preferred praying for quashing of the proceeding being Special Case No. 65/2017 arising out of Tiljala Police Station Case No. 101/2016 dated 17.03.2016, under Sections 120B/363/344/366-A/370/376 of Indian Penal Code and Section 4/17 of Protection of Children from Sexual Offence Act, 2012, now pending in the Court of Judge, Special Court & 2nd Additional Session Judge, Alipore.
2. The petitioner states that the opposite party no. 3 being the alleged victim of the complaint, being the daughter of Bablu Sarma being an adult, after converting herself as Noor Fatima of muslim faith, married the petitioner on 29.02.2016, according to shariat Law, which was duly registered under the provision of the Muslim Personal Law (accepted by the Constitution of the India) by the Muslim Marriage Registrar and Qazi.
3. That as the said dispute between the family of the victim and the petitioner was resolved amicably considering the pregnancy of the victim being the opposite party no. 3, the complainant vide her further letter dated 04.03.2017, informed the officer-in-charge Tiljala Police Station that her grand daughter made contact with her and told that she is leading a happy married life with the said Raj i.e. the petitioner herein and she does not wish to proceed with the said 3 case being Tiljala P.S. Case no. 101 dated 17.03.2016, under Section 363 of the Indian Penal Code.
4. After receipt of the said letter dated 04.03.2017, submitted by the complainant and having the aforesaid information, the concerned Investigating Officer recovered the wife of the petitioner from the house of the petitioner on 11.03.2017 and sent her to a shelter home at 89, Eliot Road, Kolkata, treating her as a minor, though the opposite party no. 3 was pregnant and started Tiljala P.S. Case No. 101 dated 17.03.2017 under Sections 120B/363/344/366A/370/376 of the Indian Penal Code and Section 4/17 POCSO Act Against the petitioner and his father namely Sk. Nizamuddin.
5. It is submitted that after recording the statement of the victim being the opposite party no.3 and on the prayer of the defacto complainant, the opposite party no. 3 was released from the shelter home and since then the petitioner and the opposite party no. 3 are leading their happy married life staying in the petitioner's house and out of their wed lock a female child has been born.
6. The Investigating Officer of the said case after completing the investigation has filed charge sheet being No. 59/2018 dated 13.07.2018 before the Learned Additional Session Judge, 2nd Court, Alipore, (Special POCSO Court) and the charges leveled against the petitioner are under Sections 363/344/366A/370 of the Indian Penal Code and Section 4 of 4 the POCSO Act. The petitioner's father namely Sk. Nizamuddin was not named in the charge sheet.
7. The petitioner submits that further continuation of the instant case against the petitioner is a gross abuse of process of law as the dispute between the petitioner and the defacto complainant has been settled, as the complaint had been lodged due to misunderstanding. And as the defacto complainant is not willing to proceed further, the criminal proceedings is liable to be quashed.
8. In spite of due service there is no representation on behalf of the opposite party no. 2 and 3 and thus there is nothing to show that the matter has been amicably settled.
9. The state has placed the Case Diary.
10. Annexure P1 is the Marriage Certificate showing the date of marriage as 29.02.2016. It is noted in the said certificate that the groom is aged 21 years and the victim, daughter of Bablu Sarma is aged 18 years. It is the case of the petitioner that the victim accepted the muslim faith and took the name 'Noor Fatima'.
11. The petitioner has relied upon the judgment of a Division Bench of this Court in CRA (DB) 14 of 2023. (Probhat Purkait @ Provat Vs The State of West Bengal) which is an appeal against conviction.
12. Annexure P-2 is a copy of a letter withdrawing the Complaint. It allegedly bears the LTI of the Complainant. The said LTI is not identified. 5
13. Order No. 1 dated 16.03.2017 in Special Case No. 65/2017 records the age of the victim as 16 years.
14. Page 111 and 8 of the Case Diary are the Medical papers and report of the victim aged 16 years, showing that she is six months pregnant.
15. Page 126 of the Case Diary is a copy of the Birth Certificate of the victim, showing her date of Birth as 15.01.2001. The date of incident in this case is 29.02.2016.
16. From the materials on record it is evident that:-
i) The victim being a hindu, converted to the Muslim faith and took the name Noor Fatima and married the accused/petitioner Sk.
Nizamuddin on 29.02.2016.
ii) The date of birth of the victim is 15.01.2001.
iii) Therefore the victim was admittedly aged 16 years at the time of Marriage though in the Marriage Certificate her age has been noted as 18 years, which is thus a false declaration.
iv) A child has been borne to the couple on 01.07.2017 when the victim was aged 17 years (a minor).
17. The Supreme Court in Independent thought Vs Union Of India & Anr., Writ Petition (Civil) No. 382 of 2013, on 11.10.2017 held:-
"1. The issue before us is limited but one of considerable public importance - whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The 6 exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl Signature Not Verified child and an unmarried girl child and has no rational nexus with any unclear Digitally signed by SANJAY KUMAR Date: 2017.10.11 16:20:29 IST Reason:
objective sought to be achieved. The artificial distinction is arbitrary and W.P. (C) No. 382 of 2013 Page 1 discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice. What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil.
35. One of the more important legislations on the subject of protective rights of children is the Prohibition of Child Marriage Act, 2006 (for short „the PCMA‟). For the purposes of the PCMA, a „child‟ is a male who has not completed 21 years of age and a female who has not completed 18 years of age and a „child marriage‟ means a marriage to which either contracting party is a child.
36. Section 3 of the PCMA provides that a child marriage is voidable at the option of any one of the parties to the child marriage - a child marriage is not void, but only voidable.
Interestingly, and notwithstanding the fact that a child marriage is only voidable, Parliament has made a child marriage an offence and has provided punishments for contracting a child marriage. For instance, Section 9 of the PCMA provides that any male adult above 18 years of age marrying a child shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both. Therefore regardless of his age, a male is penalized under this section if he marries a girl child. Section 10 of the PCMA provides that whoever performs, conducts, directs or abets any child W.P. (C) No. 382 of 2013 Page 23 marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees; Section 11 of the PCMA provides punishment for promoting or permitting solemnization of a child marriage; 7
and finally Section 13 of the PCMA provides that the jurisdictional judicial officer may injunct the performance of a child marriage while Section 14 of the PCMA provides that any child marriage solemnized in violation of an injunction under Section 13 shall be void.
37. It is quite clear from the above that Parliament is not in favour of child marriages per se but is somewhat ambivalent about it. However, Parliament recognizes that although a child marriage is a criminal activity, the reality of life in India is that traditional child marriages do take place and as the studies (referred to above) reveal, it is a harmful practice. Strangely, while prohibiting a child marriage and criminalizing it, a child marriage has not been declared void and what is worse, sexual intercourse within a child marriage is not rape under the IPC even though it is a punishable offence under the Protection of Children from Sexual Offences Act, 2012. Protection of Children from Sexual Offences Act, 2012 (POCSO)
38. The Protection of Children from Sexual Offences Act, 2012 (for short „the POCSO Act‟) is an important statute for the purposes of our discussion.
W.P. (C) No. 382 of 2013 Page 24 The Statement of Objects and Reasons necessitating the enactment of the POCSO Act makes a reference to data collected by the National Crime Records Bureau (NCRB) which indicated an increase in sexual offences against children. The data collected by the NCRB was corroborated by the Study on Child Abuse: India 2007 conducted by the Ministry of Women and Child Development of the Government of India."
18. Section 3 of the Prohibition of Child Marriage Act, 2006 lays down:-
"3. Child marriages to be voidable at the option of contracting party being a child.-
(1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage:
Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a 8 contracting party to the marriage who was a child at the time of the marriage.
(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend alongwith the Child Marriage Prohibition Officer.
(3) The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority.
(4) While granting a decree of nullity under this section, the district court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money:
Provided that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should not be passed."
19. It is thus evident that the victim Converted to the muslim faith to take advantage of the age of marriage.
20. The parties, as submitted are living a happy married life with their child.
21. The victim, who was aged about 20 years at the time of filing the revisional application by the petitioner has not exercised her right under Section 3 of the Prohibition of Child Marriage Act, 2006 to declare her marriage as void. As the marriage herein is voidable at the instance of the minor within two years of attaining majority, the period to exercise her right under Section 3(3) of the Prohibition Act has also expired.
22. A Three Judge Bench of the Court in (2012) 10 Supreme Court Cases, 303, Gian Singh vs State of Punjab and another has cleared the 9 position in respect of the power of the High Court in quashing a criminal proceedings in exercise of its inherent jurisdiction in para 61 of the judgment, which is reproduced herein:-
"The position that emerges from the above discussion can be summarised thus : the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz. : (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences 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. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, 10 partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
23. In Anita Maria Dias & Anr. vs The State of Maharashtra & Anr. (2018) 3 SCC 290.
The Court held:-
(a) .......................................................................
(b) Timing of settlement would be crucial for exercise of power or declining to exercise power (stage of proceedings).11
24. In Ramesh Chandra Gupta vs. State of Uttar Pradesh and Ors., 2022 LiveLaw (SC) 993, Criminal Appeal No(s). ......... of 2022 (Arising out of SLP (Crl.) No(s). 39 of 2022), the Supreme Court held:-
"15. This Court has an occasion to consider the ambit and scope of the power of the High Court under Section 482 CrPC for quashing of criminal proceedings in Vineet Kumar and Others vs. State of Uttar Pradesh and Another, (2017) 13 SCC 369 decided on 31st March, 2017. It may be useful to refer to paras 22, 23 and 41 of the above judgment where the following was stated:
"22. Before we enter into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 CrPC vested in the High Court. Section 482 CrPC saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.
23. This Court time and again has examined the scope of jurisdiction of the High Court under Section 482 CrPC and laid down several principles which govern the exercise of jurisdiction of the High Court under Section 482 CrPC. A three-Judge Bench of this Court in State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In para 7 of the judgment, the following has been stated :
„7. ... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the 12 High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.‟
41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fides and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 which is to the following effect :
„102. (7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal 13 grudge.‟ Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 but did not advert to the relevant facts of the present case, materials on which final report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings."
16. The exposition of law on the subject relating to the exercise of the extra-ordinary power under Article 226 of the Constitution or the inherent power under Section 482 CrPC are well settled and to the possible extent, this Court has defined sufficiently channelized guidelines, to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. This Court has held in para 102 in State of Haryana and Others v. Bhajan Lal and Others, 1992 Supp. (1) 335 as under :
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the 14 FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
17. The principles culled out by this Court have consistently been followed in the recent judgment of this Court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others, 2021 SCC Online SC 315."
15
25. Thus in view of the said provision (Section 3) of the Prohibition of Child Marriage Act and the submission that the parties (now major) wish to reside together with their child, this Court is of the view that this case is a fit case where the inherent powers of this Court should be exercised and the present Case is liable to be quashed in the interest of justice.
26. CRR 1847 of 2020 is allowed.
27. Accordingly, the proceeding being Special Case No. 65/2017 arising out of Tiljala Police Station Case No. 101/2016 dated 17.03.2016, under Sections 120B/363/344/366-A/370/376 of Indian Penal Code and Section 4/17 of Protection of Children from Sexual Offence Act, 2012, now pending in the Court of Judge, Special Court & 2nd Additional Session Judge, Alipore is hereby quashed in respect of the petitioner.
28. All connected applications, if any, stand disposed of.
29. Interim order, if any, stands vacated.
30. Copy of this judgment be sent to the learned Trial Court for necessary compliance.
31. Urgent certified website copy of this judgment, if applied for, be supplied expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)