Abrar And 2 Others vs State Of U.P. And Another
2023 Latest Caselaw 10817 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 67
 

 
Case :- APPLICATION U/S 482 No. - 9733 of 2023
 

 
Applicant :- Abrar And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Abrar Ahmad Siddiqui
 
Counsel for Opposite Party :- G.A.,Mohammad Ahmar Malik,Mohd. Kalim
 

 
Hon'ble Rahul Chaturvedi,J.

Supplementary affidavit filed by learned counsel for the applicant today in the Court is taken on record.

Heard learned counsel for the applicants, learned A.G.A for the State and perused the record.

Pursuant to the earlier order of this Court, learned counsel for the applicants has furnished supplementary affidavit annexing therein the High School Certificate of the victim of the year 2013 which shows that the date of birth of the victim is 18.05.1999 and on the date of incident, she was aged about 16 years as per High School Certificate.

By means of the instant application the applicants is pleased to quash the entire criminal proceeding in Special Case no.90 of 2022 in case crime no.116 of 2015 against applicant no.1 under sections 363, 366, 368, 376 IPC and Section 17 and 4 of the POCSO Act and against applicant nos.2 and 3, under sections 363, 366, 368 IPC and Section 17 and 4 of POCSO Act, police station-C.B. Ganj, District-Bareilly pending in the court of Special Judge, POCSO Act, Court no.2/Additional Sessions Judge, Bareilly and impugned charge sheet dated 29.11.2015 and cognizance order dated 10.02.2017 passed by Additional District and Sessions Judge, Bareilly.

Submission made by learned counsel for the applicant is that this is the second 482 Cr.P.C. application and the earlier 482 application having no.12699 of 2018 was filed and the co-ordinate Bench of this Court on 16.12.2022 has permitted to verify the compromise between the parties.

Learned A.G.A. has refuted the prayer and submits that the present offence is such a heinous offence(376 IPC) that this cannot be compromised as it relates to moral turpitude. Thus, the offence cannot be compounded in exercise of power under section 482 Cr.P.C. Learned A.G.A. has relied upon the judgment of Hon'ble the Apex Court in the case of Gian Vs. State of Punjab and anr reported in (2012) 10 SCC 303, some part of which is quoted hereinbelow :-

"In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all."

After hearing the parties at length, the genesis of the case starts from lodging of the FIR by one Zilani on 04.05.2015 under section 363, 366 IPC and section 8 of POCSO Act Police station-Collector Bookganj, District-Bareilly against the applicants with the allegation that his daughter Ms. 'K'(16 years) was enticed away by his real brother Ekrar and sister-Shamsha. On making an inquiry, it was revealed that the victim while fleeing away from the house, has taken away the golden ring, other ornaments and Rs.20,000/- in cash. The girl was eventually recovered and after recovery of the girl, in her 161 Cr.P.C. statement, she states that she is aged about 21 years (major girl) and she is in relationship with the applicant Abrar. She admits that whatever action has been done by Abrar(applicant) is with her consent and she further expressed her desire that she wants to remain in the company of Abrar. She next submits that on 25.05.2019, she got married with Abrar after performing Nikaah. The radiological report of the victim indicate that she is aged about 20 years on 22.05.2015. In her 164 Cr.P.C. statement, she states that on her volition and accord, she joined the company of the present applicant and she has performed Nikaah and now they are residing as husband and wife. She next submits that out of their wedlock, she has given birth to two kids. In addition to above, it is further submitted that the parties have come to terms on 27.03.2018(Annexure-9).

Learned counsel for the applicants has relied upon the judgment of Hon'ble the Apex Court in the case of Kapil Gupta Vs. State of NCT of Delhi and anr in Criminal Appeal No.1217 of 2022 arising out of SLP(CRL.) No.5806 of 2022 decided on 10.08.2022 in order to buttress his contention, paragraph no.13 of which is quoted hereinbelow :-

"13. It can thus be seen that this Court has clearly held that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. The Court has also to take into consideration as to whether the settlement between the parties is going to result into harmony between them which may improve their mutual relationship."

The Hon'ble Apex Court has loose the rigors of heinous and serious offence like present case and has submitted that the parties have entered into nuptial knot and have given birth to two kids.

Moreover, learned counsel for the applicants has also relied upon the judgment of Hon'ble Apex Court in the case of Mafat Lal and Another Vs. State of Rajasthan in Crl. Appeal no. 592 of 2022 decided on 28.03.2022, the relevant extract of the judgement is quoted herein below:-

"7. Before this Court, also the abductee has joined the accused as appellant No.2. Once again similar stand has been taken as was taken before the High Court. Both the appellants have filed separate affidavits. Appellant No.2 has specifically stated before the High Court as also before this Court that she had left her parental home on her own free volition. The appellants are married since December 2006 and have been living happily. They have also been blessed with a son in the year 2014 who would now be 8 years old. No fruitful purpose would be served by relegating the matter for conducting the trial as the same would not be conducive for either of the appellants. It would be a futile exercise. Kidnapping would necessarily involve enticing or taking away any minor under eighteen years of age if a female for the offence under Section 363 IPC. In the present case, the abductee had clearly stated that she was neither taken away nor induced and that she had left her home of her own free will. Section 366 IPC would come into play only where there is a forceful compulsion of marriage, by kidnapping or by inducing a woman. This offence also would not be made out once the appellant no. 2 the abductee has clearly stated that she was in love with the appellant no.1 and that she left her home on account of the disturbing circumstances at her parental home as the said relationship was not acceptable to her father and that she married appellant no.1 on her own free will without any influence being exercised by appellant no.1.

8. Considering the overall facts and circumstances of this case, the ends of justice would be best secured by quashing the FIR and all consequential proceedings that arise therefrom. Accordingly, the appeal is allowed. The impugned judgement and order dated 09.12.2020 of the High Court of Rajasthan is set aside and the entire proceedings arising out of the FIR No. 45 of 2005 dated 23.05.2005 registered with Police Station Phulera, District Jaipur under Sections 363 and 366 IPC and all consequential proceedings are hereby quashed."

Taking the help of these guidelines, and considering the fact that both the parties are residing as husband and wife, it would be heavy upon the parties to ask the offender to face the prosecution, the endeavour of law should be to have a peaceful society and if somebody has taken step which is at relevant point of time, contrary to law to an extent, but since they are residing as husband and wife with their children, endeavour of law should not be to disturb their life and baffle the equation between them.

Accordingly, the present 482 application stands allowed. Taking the guidance of the aforesaid judgment of Hon'ble the Apex Court and considering the fact that both of them are residing peacefully as husband and wife along with their children, entire criminal proceeding in Special Case no.90 of 2022 in case crime no.116 of 2015 against applicant no.1 under sections 363, 366, 368, 376 IPC and Section 17 and 4 of the POCSO Act and against applicant nos.2 and 3, under sections 363, 366, 368 IPC and Section 17 and 4 of POCSO Act, police station-C.B. Ganj, District-Bareilly pending in the court of Special Judge, POCSO Act, Court no.2/Additional Sessions Judge, Bareilly and impugned charge sheet dated 29.11.2015 and cognizance order dated 10.02.2017 passed by Additional District and Sessions Judge, Bareilly is hereby quashed.

Let copy of this order may be transmitted to the concerned court within twenty days.

Order Date :- 12.4.2023

Sumit S