M. Gangaraju vs State Of Karnataka
2023 Latest Caselaw 6423 Kant

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                                                                  NC: 2023:KHC:32723
                                                              CRL.P No. 8114 of 2023




                             IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                              DATED THIS THE 11TH DAY OF SEPTEMBER, 2023
                                                  BEFORE
                         THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
                                  CRIMINAL PETITION NO. 8114 OF 2023
                        BETWEEN:
                        M. GANGARAJU
                        S/O LATE MANGALA THIPPANNA,
                        AGED ABOUT 26 YEARS,
                        RESIDENT OF KORANA PREMA @ MOHINI
                        BEHIND PETROL BUNK, MARANADU TOWN,
                        KANTHURU VILLAGE, MADIKERE TALUK,
                        KODAGU-571 252.
                                                                        ...PETITIONER
                        (BY SRI. A C BALARAJ, ADVOCATE)

                        AND:

                        1.    STATE OF KARNATAKA
                              REPRESENTED BY ITS
                              STATION HOUSE OFFICER
                              KODAGU WOMEN, POLICE STATION,
                              MADIKERI SUB-DIVISION,
                              KODAGU DISTRICT-571 252.

                              REPRESENTED BY
Digitally signed by B
K
                              HIGH COURT GOVERNMENTPLEADER,
MAHENDRAKUMAR
Location: High
                              HIGH COURT OF KARNATAKA,
Court of Karnataka
                              BENGALURU-560 001.

                        2.    H.A. DEENA
                              W/O LAET ANANDA,
                              AGED ABOUT42 YEARS,
                              RESIDENT OF KORANA PREMA @ MOHINI
                              BEHIND PETORL BUNK, MARANADU TOWN,
                              KANTHURU VILLAGE, MADIKERE TALUK,
                              KODAGU-571 252.
                                                                      ...RESPONDENTS
                        (BY SRI. M R PATIL, HCGP FOR R-1;
                            SRI. N PRAVEEN KUMAR, ADVOCATE FOR R-2)

                             THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
                        THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE
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                                                 NC: 2023:KHC:32723
                                          CRL.P No. 8114 of 2023




THE IMPUGNED ORDER DATED 29.03.2023 AND THE ENTIRE
PROCEEDINGS    INITIATED  AGAINST   THE  PETITIONER  IN
SPL.C.(POCSO) NO.33 OF 2023, PENDING ON THE FILE OF THE
LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE, KODAGU,
MADIKERI.

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

                               ORDER

The petitioner is charge sheeted for the offences punishable under Sections 363, 366(A), 343, 376(2)(n) of IPC and Sec.6 of POCSO Act 2012.

2. A missing complaint was filed by the respondent No.2 stating that, her daughter has gone missing. During the course of investigation, the daughter of respondent No.2 and the petitioner were apprehended and on interrogation, the survivor stated that her marriage with the petitioner-accused was solemnized and also she had Sexual intercourse with the petitioner. The victim was aged about 17 years 11 months as on the date of the incident.

3. The respondent No.2 and her daughter i.e., survivor are present before this Court and have filed an affidavit stating that, the petitioner-accused was in love with the survivor for nearly 2 years and their marriage has been solemnized. It is further stated that the survivor has given birth to a male baby on 8.9.2023.

4. The respondent No.2 as well as her daughter i.e., the survivor who is aged about 18 years 9 months as of today has stated that they have no objections for quashing the

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impugned proceedings. They further stated that, the continuation of the petitioner-accused in judicial custody and incarceration, would cause more misery and agony rather securing justice to both the survivor and the new born baby.

5. The same are placed on record.

6. In the instant case, the victim was aged about 17 years 11 months as on the date of the incident and from the wedlock a male baby is born on 8.9.2023. The survivor is aged about 18 years 9 months as of today.

7. 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;

(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,

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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."

8. 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.

9. Though the survivor was the minor as on the date of incident, however, having regard to the fact that, the marriage of the survivor with the accused having been solemnized, the continuation of the petitioner in judicial custody may result in incarceration, and moreover the survivor and her new born baby will be put to misery and agony rather than securing justice, since the survivor and her new born baby are dependent on the accused for their day to day requirements. Therefore, the continuation of the criminal proceedings will be an abuse of process of law.

10. Accordingly, I pass the following:

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ORDER

i) The Criminal petition is allowed

ii) The impugned proceedings in Spl.C.(POCSO)No.33/2023 on the file of the Learned Principal District and Sessions Judge, Kodagu, Madikeri, is hereby quashed.

iii) The accused shall be forthwith released from the judicial custody, if not required in any other case.

Sd/-

JUDGE

HR