Shivakumar vs State Of Karanataka
2023 Latest Caselaw 6334 Kant

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                                                                NC: 2023:KHC:32319
                                                            CRL.P No. 3498 of 2023




                             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 7TH DAY OF SEPTEMBER, 2023

                                                BEFORE
                         THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
                                  CRIMINAL PETITION NO. 3498 OF 2023
                        BETWEEN:

                        SHIVAKUMAR
                        S/ LATE PARAMESHWARAPPA,
                        AGED ABOUT 24 YEARS,
                        R/O SAVALANGA VILLAGE,
                        NYAMATHI VILLAGE,
                        DVANAGERE-577225.
                                                                     ...PETITIONER
                        (BY SRI. T.S. CHAKRAVARTHY, ADVOCATE)

                        AND:

                        1.    STATE OF KARANATAKA
                              NYAMATHI POLICE STATION,
                              DAVANAGERE DISTRICT,
                              REPRESENTED BY STATE PUBLIC PROSECUTOR,
Digitally signed by B
K
MAHENDRAKUMAR
                              HIGH COURT BUILDINGS
Location: HIGH
COURT OF
                              BANGALORE-560 001.
KARNATAKA


                        2.    GEETHA K T
                              SUPERVIOR, CDPO OFFICE,
                              HONNALI TOWN,
                              DAVANAGERE DISTRICT-577217.
                                                                   ...RESPONDENTS
                        (BY SRI. M.R. PATIL, HCGP FOR R-1 AND AR-2)

                             THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
                        OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
                        QUASH THE ENTIRE PROCEEDINGS IN FIR BEARING CRIME
                        NO.24/2021   NOW    RENUMBERED     AS   S.C.NO.219/2022
                        AGAINST THE PETITIONER WHO ARE ACCUSED FOR THE
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                                              NC: 2023:KHC:32319
                                        CRL.P No. 3498 of 2023




OFFENCES PUNISHABLE UNDER SECTION 376(2)(n) OF IPC,
SECTION 6 OF POCSO ACT AND SECTION 9 OF CHILD
MARRIAGE RESTRAINT ACT, PENDING ON THE FILE OF
ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-I,
DAVANAGERE IS PRODUCED HEREWITH AND MARKED AS
ANNEXURE-D.

     THIS  PETITION,   COMING    ON   FOR  REPORTING
SETTLEMENT, THIS DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

The petitioner is sought to be prosecuted for the offences punishable under Sections 376(1), 376(J), 376(2)(n) of IPC and Section 6 of POCSO Act and Section 9 of the Prohibition of Child Marriage Act.

2. The case of the prosecution is that, the accused herein forcibly made the survivor to enter into a relationship by promising to marry, and thereafter committed penetrative sexual assault against her wish and also married the survivor. The survivor was a minor as on the date of incident.

3. The accused and the survivor are present before this Court and have filed a joint compromise petition stating that the sexual intercourse between them was consensual one and the marriage was solemnized between them mutually and from the said wedlock, a male baby is born, who is aged three years as of today. The survivor has no objection for quashing the impugned proceeding.

4. 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:

NC: 2023:KHC:32319 CRL.P No. 3498 of 2023

"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;

(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,

NC: 2023:KHC:32319 CRL.P No. 3498 of 2023

quashed not only on the basis of compromise, but also for the reasons mentioned hereinabove and what has transpired during the course of hearing."

5. 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.

6. The survivor was aged about 17 years on the date of incident and as of today, she is 20 years. If the impugned proceeding is allowed to be continued it will likely to result in incarceration of the accused and it would cause more harm and misery rather than securing ends of justice. To protect the interest of the survivor and also the child, it would be appropriate to quash the impugned proceedings. Accordingly, I pass the following:

ORDER

i) Criminal petition is allowed.

ii) The impugned proceeding in SC No.219/2022 pending on the file of the learned Additional district and Sessions Judge, FTSC-I, Davanagere, stands quashed.

Sd/-

JUDGE

BKM