Karnataka High Court
Mr. Mohammed Basheer vs The State Of Karnataka on 12 September, 2023
Bench: Hemant Chandangoudar
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NC: 2023:KHC:32965
CRL.P No. 2297 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 2297 OF 2023
BETWEEN:
MR. MOHAMMED BASHEER
S/O MR. SULAIMAN
R/AT NO.2-117B, NEAR PARLIA MASJID
BANTWAL TALUK, PRESENTLY R/AT
NO 1-112, BALIKE MANE
BADAGAHITTILU, BADAGA BELLURU
BANTWAL TALUK, DAKSHINA KANNADA-574 219.
...PETITIONER
(BY SRI. D L MURTHY, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY BANTWALA RURAL POLICE STATION
DAKSHINA KANNADA
REP. BY SPP HIGH COURT BUILDING
BENGALURU-560 001.
2. MR. MOHAMMED SALEEM
S/O ASHUBYARI
AGED ABOUT 51 YEARS
Digitally signed by B
K
R/O BALIKE HOUSE
MAHENDRAKUMAR
Location: High BADAGA BELLURU VILLAGE, BANWALA
Court of Karnataka
DAKSHINA KANNADA-574 219.
...RESPONDENTS
(BY SRI. M R PATIL, HCGP FOR R-1;
SRI. K RAVISHANKAR, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE FIR
AND CHARGE SHEET REGISTERED BY THE RESPONDENT POLICE
AGAINST THE PETITIONER HEREIN SPL.CASE .NO.200/2021 FOR THE
OFFENCE P/U/S.376(2)(n),506 OF IPC AND SEC.4 AND 6 OF POCSO
ACT WHICH IS PENDING ON THE FILE OF THE HON'BLE ADDITIONAL
DISTRICT AND SESSIONS JUDGE FTSC- II (POCSO) AT D.K.,
MANGALURU AT ANNEXURE-C.
THIS PETITION, COMING ON FOR REPORTING SETTLEMENT,
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 2297 of 2023
ORDER
The petitioner-accused is sought to be prosecuted for the
offences punishable under Sections 376 (2) (n) and 506 of IPC
and Sections 4 and 5 of POCSO Act.
2. The case of the prosecution is that, when the
survivor was alone at home, and when she went to prepare Tea
in the kitchen, at that time, accused came to the kitchen and
committed penetrative sexual assault on the survivor, and
again repeated the same on 14.6.2021.
3. The petitioner-accused, the defacto-complainant
and the survivor are present before this Court and they have
filed joint application under Section 320 r/w Section 482 of
Cr.P.C., and affidavits stating that, they have amicably resolved
the dispute among themselves at the instance of the well-
wishers, and the defacto-complainant as well as the survivor
have no objection for quashing the impugned proceedings.
4. The joint application and affidavits are placed on
record.
5. The survivor was aged about 16 years as on the
date of the incident and she is aged than 18 years as of today.
The marriage of the accused with the survivor has been
solemnized on 1.8.2023 after the survivor attained the age of
majority. The parties further submit that sexual intercourse
between the accused and the survivor was consensual one and
the complaint was lodged at the instance of ill-wishers.
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CRL.P No. 2297 of 2023
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;
(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
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CRL.P No. 2297 of 2023
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. 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, and the survivor is aged more than 18 years as on
the date of the marriage, if the petitioner-accused is subjected
to trial it would result in incarceration of the petitioner accused
resulting in causing misery and agony to the survivor rather
than securing justice. Therefore, the continuation of the
criminal proceedings will be an abuse of process of law.
9. Accordingly, I pass the following:
ORDER
i) The Criminal petition is allowed;
ii) The impugned proceedings in Spl.C No.200/2021 on
the file of the Learned Additional District and
Sessions Judge, FTSC-II POCSO, Dakshina
Kannada, Mangaluru is hereby quashed.
Sd/-
JUDGE
HR
