Kumar A vs State Of Karnataka
2023 Latest Caselaw 7200 Kant

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                                                                   NC: 2023:KHC:37279
                                                               CRL.P No. 9860 of 2023




                             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 11TH DAY OF OCTOBER, 2023

                                                  BEFORE
                         THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
                                  CRIMINAL PETITION NO. 9860 OF 2023
                        BETWEEN:

                        KUMAR A
                        S/O LATE ANANDAPPA,
                        AGED ABOUT 24 YEARS,
                        R/O NEAR ANJALI SCHOOL,
                        9TH CROSS, 2ND MAIN,
                        SRINIVASANAGARA,
                        SUNKADAKATTE,
                        BANGALORE -560079.

                        PRESENTLY INCARCERATION,
                        IN BANGALORE CENTRAL PRISON,
                        PARAPPAN AGRAHARA,
                        SINCE 24-01-2023.
                                                                         ...PETITIONER
                        (BY SRI. MOHAN KUMAR H.G., ADVOCATE)

Digitally signed by B   AND:
K
MAHENDRAKUMAR
Location: HIGH          1.    STATE OF KARNATAKA
COURT OF                      BY KAMAKSHIPALYA POLICE STATION,
KARNATAKA
                              THROUGH HIGH COURT GOVT. PLEADER
                              BENGALURU-560 001.

                        2.    SMT. VICTIM
                              W/O KUMAR A
                              AGED ABOUT 19 YEARS,
                              R/O NEAR ANJALI SCHOOL,
                              9TH CROSS, 2ND MAIN
                              SRINIVASANAGARA, SUNKADAKATTE
                              BANGALORE-560079.
                                                                       ...RESPONDENTS
                        (BY SMT. WAHEEDA M.M., HCGP FOR R-1;
                            SRI ARUN KUMAR M., ADVOCATE FOR R-2)
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                                           NC: 2023:KHC:37279
                                       CRL.P No. 9860 of 2023




     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO ALLOW
THIS CRIMINAL PETITION BY QUASHING THE IMPUGNED FINAL
REPORT FILED BY THE 1ST RESPONDENT KAMAKSHIPALYA POLICE
STATION, BENGALURU IN CRIME NO.38/2023 OF KAMAKSHIPALYA
POLICE STATION DATED 21.01.2023 ON THE FILE OF THE TRIAL
COURT FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 363, 366,
344 OF IPC AND U/S. 3(a), 4, 5(J)(II), 5(L),6 OF POCSO ACT 2012
PRODUCED AT ANNEXURE C AND ETC.

    THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
                            ORDER

The learned High Court Government Pleader accepts notice for the respondent No.1.

2. Sri Arun Kumar M, learned counsel files power on behalf of the respondent No.2.

3. The petitioner is sought to be prosecuted for the offences punishable under Sections 363, 366, 344 of IPC and Sections 3(a), 4, 5(j)(II), 5(L) and 6 of the Protection of Children From Sexual Offences Act, 2012.

4. The case of the prosecution is that, the petitioner and the survivor were in love with each other and the survivor was a minor and the petitioner by promising to marry, induced her to have sexual intercourse and thereafter continued to have physical relationship, due to which she conceived. The marriage of the petitioner/accused with the survivor was solemnized on 02.06.2022 and thereafter on 20.01.2023 when she went to the hospital for check up, it was uncovered that the survivor

NC: 2023:KHC:37279 CRL.P No. 9860 of 2023

was a minor and she was aged 18 years and three months pregnant.

5. The survivor is present before this Court and she stated that the sexual intercourse between them was out of love and affection and the accused did not commit forcible sexual assault. She further stated that her marriage with the accused was with mutual consent and not under coercion and undue influence and she is dependent on the accused for her livelihood and except the accused, she has no one to look after.

6. In identical circumstances, the High Court of Rajasthan, in the case of Tarun Vaishnav -vs- State of Rajasthan, at paras 18 and 19 has held as follows:

"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;

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(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;

(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 ingredients of retributive theory of punishment -"avenge for the person wronged" is completely absent.

19. Faced with such situation and upon appraisal of the overall circumstances, as an exceptional case, this Court is persuaded to allow the petition, as prayed. The impugned FIR No.0260/2022 registered at Police Station Devnagar, Jodhpur City (West) against the petitioner, is hereby, quashed not only on the basis of compromise, but also for the reasons mentioned hereinabove and what has transpired during the course of hearing."

7. The judgment of the High Court of Rajasthan was taken up in an appeal, and the Hon'ble Supreme Court has confirmed the decision of the High Court of Rajasthan in SLP (Crl.) No. 1890/2023 dated 3.3.2023.

8. As of today, the petitioner No.1 is aged about 19 years. Therefore, it would cause more misery and agony to the survivor rather than securing ends of justice, if the criminal

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proceedings are allowed to continue and if the accused is incarcerated . To protect the interest of the survivor, it would be appropriate to quash the impugned proceedings to secure the ends of justice. Accordingly, I pass the following:

ORDER

i) Criminal petition is allowed.

ii) The impugned proceeding in Spl.C No.687/2023 pending on the file of the Fast Track Court (FTC)-1, Bangalore, stands quashed.

iii) Liberty is reserved with the 2nd respondent in filing appropriate application before this Court in the event, the petitioner does not come forward to get their marriage registered before the competent Authority.

iv) The respondent No.1/Jain Superintendent concerned to release the petitioner forthwith from the judicial custody, if he is not required any other case. The bail bond stands cancelled.

Sd/-

JUDGE

BKM