Karnataka High Court
Sunilnaika vs State Of Karnataka By on 7 September, 2023
Bench: Hemant Chandangoudar
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NC: 2023:KHC:32317
CRL.P No. 4453 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. 4453 OF 2023
BETWEEN:
SUNILNAIKA
S/O KRISHNA NAIKA
AGED ABOUT 24 YEARS,
R/O. MACHAGONDANAHALLI VILLAGE,
NYAMTHI TALUK, DAVANAGERE-577 225.
...PETITIONER
(BY SRI. CHAKRAVARTHY T S, ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
NYAMATHI POLICE STATION
DAVANAGERE DISTRICT-577 225
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE-560 001.
2. GEETHA K T,
Digitally signed by B
SUPERVISOR, CDPO OFFICE,
K
MAHENDRAKUMAR
HONNALI TOWN,
Location: HIGH DAVANAGERE DISTRICT-577 217.
COURT OF
KARNATAKA ...RESPONDENTS
(BY SRI. M R PATIL, HCGP FOR R-1;
V/O DATED 07.09.2023, NOTICE TO R-2 D/W)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH
THE ENTIRE PROCEEDING IN FIR BEARING CRIME NO.26/2021 NOW
RENUMBERED AS S.C.NO.221/2022 AGAINST THE PETITIONER WHO
ARE ACCUSED FOR THE OFFENCE P/U/S 376(2)(n) OF IPC AND
SEC.6 OF POCSO ACT AND SEC.9 OF CHILD MARRIAGE RESTRAINT
ACT, PENDING ON THE FILE OF THE HONBLE ADDL.DISTRICT AND
SESSIONS JUDGE, FTSC-1 AT DAVANAGERE.
THIS PETITION, COMING ON FOR REPORTING SETTLEMENT,
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 4453 of 2023
ORDER
The learned High Court Government Pleader accepts
notice for the respondent No.1 - State.
2. Notice to respondent No.2 is dispensed with.
3. 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.
4. 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,
who was a minor.
5. 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 was born, who is aged
three years as of today and the survivor has no objection for
quashing the impugned proceeding.
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:
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CRL.P No. 4453 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 them 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
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CRL.P No. 4453 of 2023
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. The survivor was aged about 17 years as on the
date of incident and as of today, she is 22 years and from the
said wedlock, a male and a female babies are born. 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
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CRL.P No. 4453 of 2023
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.221/2022 pending
on the file of the learned Additional district and Sessions Judge,
FTSC-I, Davanagere, stands quashed.
Sd/-
JUDGE
BKM
