Karnataka High Court
Wasim Razzaq Khan vs State Of Karnataka on 7 August, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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CRL.P No. 3077 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 3077 OF 2024
BETWEEN:
1. WASIM RAZZAQ KHAN
S/O RAZAK KHAN
AGED ABOUT 25 YEARS
R/AT 195, SHIKARIPALYA
JIGANI HOBLI, HULIMANGALA POST
ANEKAL TALUK, JIGANI
BANGALORE - 560 105.
2. SHAHABANU
W/O RAZAK KHAN
AGED ABOUT 42 YEARS
R/AT C/O SYED NASIR RENT
HOUSE, NEAR NOORANI MASJID
SHIKARIPALYA, JIGANI HOBLI
ANEKAL TALUK
BANGALORE - 560 105.
3. GULABJHON
Digitally W/O ANWAR PASHA
signed by
NANDINI MS AGED ABOUT 38 YEARS
Location: R/AT C/O AMZAD RENT HOUSE
High Court of 4TH CROSS, BEHIND MAKKA
Karnataka
MASJID, AKBARNAGAR
SHIKARIPALYA, JIGANI HOBLI
ANEKAL TALUK
BANGALORE - 560 105.
...PETITIONERS
(BY SRI MOHAMMED PASHA C, ADV.)
AND:
1. STATE OF KARNATAKA
THROUGH HEBBAGODI POLICE
BENGALURU, REP BY SPP
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CRL.P No. 3077 of 2024
HIGH COURT CAMPUS
BANGALORE - 560 001.
2. VICTIM
AGED ABOUT 18 YEARS
D/O ANAR PASHA
R/AT 195, SHIKARIPALYA
JIGANI HOBLI, HULIMANGALA
POST, ANEKAL TALUK, JIGANI
BANGALORE - 560 105.
...RESPONDENTS
(BY SRI CHANNAPPA ERAPPA, HCGP FOR R-1;
SRI MOHD. MUSTHAFA, ADV., FOR
SRI MOHD ANWAR, ADV., FOR R-2)
THIS CRL.P IS FILED U/S 482 CR.PC PRAYING TO QUASH THE
PROCEEDINGS IN SPL.C.C.NO.493/2023 ARISING OUT OF VIDE
CR.NO.295/2022 FOR AN OFFENCE P/U/S 376 OF IPC, SEC. 6 AND 21 OF
POCSO ACT AND SEC. 9 OF PROHIBITION OF CHILD MARRIAGE ACT,
WHICH IS PENDING ON THE FILE OF HONBLE ADDL. DISTRICT AND
SESSIONS JUDGE (FTSC-III) AT BANGALORE RURAL OF HEBBAGODI
POLICE STATION AT BANGALORE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. Accused nos.1 to 3 in Spl. Case No.493/2023 pending before
the Court of Addl. District & Sessions Judge, FTSC-III, Bengaluru
Rural District, arising out of Crime No.295/2022 registered by
Hebbagodi Police Station, Bengaluru District, for the offences
punishable under Section 376 IPC, Sections 6 & 21 of POCSO Act,
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and Section 9 of the Prohibition Child Marriage Act, are before this
Court under Section 482 Cr.PC with a prayer to quash the entire
proceedings in the aforesaid case.
2. Heard the learned Counsel for the parties.
3. Learned Counsel for the petitioners and learned Counsel for
respondent no.2 who is the victim in the present case, jointly
submit that there was not dispute between the parties and criminal
case was registered against the petitioners only on the basis of the
first information submitted by the District Child Protection Officer,
Bengaluru, after receiving information about the victim who was
pregnant visiting Vanivilas Hospital for medical checkup. They
submit that pendency of the criminal case has been causing
unnecessary hardship and stress in the family life of the petitioners
and respondent no.2, and therefore, they intend to give a quietus
to the entire dispute and live a peaceful married life. They submit
that the impugned criminal proceedings has been quashed by this
Court in so far as it relates to accused no.6 in Crl.P.No.3694/2023
disposed of on 27.03.2024.
4. Learned HCGP, however, brings to the notice of this Court
that charge sheet has been filed against the petitioners for non-
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cognizable offences, and therefore, on the basis of the settlement
between the parties, the relief sought for in the petition cannot be
granted.
5. Parties to the petition who have reported settlement in the
matter, have filed two separate joint affidavits. Petitioner no.1 and
respondent no.2 have filed joint affidavit dated 07.08.2024 and
petitioner nos.2 & 3 have filed another joint affidavit of even date.
Both the joint affidavits filed by the parties are taken on record. In
the joint affidavit, of petitioner no.1 and respondent no.2-victim, it
is stated as under:
"We both the parties are residing in the above
address along with our respective families, though
we are relatives and we both fell in love and opted to
marry each other and same was brought to the
notice of our family members, In which both the
family members agreed and later our engagement
ceremony also held in our residential places and our
marriage date was yet to be fixed.
It is state that we belong to poor family and due to
acute poverty so our financial crisis was very worst,
As such our family members were not in a position to
afford our marriage expenses. Therefore we both
decided to marry each other without the knowledge
of our respective family members, consequently,
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secret way we both went to Mysore and got married
at a dargah on 10.12.2021 and we both
consummated the marriage so out of the said
wedlock we blessed with a baby girl Since onwards
we both leading a happy marital life without any
obstacles, further our respective family members,
also very cordial relationship with each other Hence
we both solemnly and firmly States on oath as
fallows.
I, first party state since our marriage, we have no
personal differences or trivial issues, with second
party or with her respective family members and I
have taken care of my wife, second party and child in
all angles and I never made her to struggle or
undergo any kind of hardships, overall I being a duty
bond husband discharging all my marital obligation
and also trying to mould the future of my daughter
and make marriage prosper, Hence I under take to
provide all basic necessities towards my wife and
daughter and also try to protect the interest of
second party and make a good atmosphere in the
society till my last breath, further I under take if I
cause any trouble or breach of any obligation with
respect to the marital affairs on second party under
such circumstances, the second party has liberty to
take appropriate action against me and knock the
doors of justice.
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I, the second party state the first party is my
husband and we both voluntary opted to marry each
other on account of true love and our respective
family members also agreed about our wishes of the
marriage and also held engagement ceremony and
postpone our marriage on account of acute poverty
as well as due to the financial problem. Therefore,
we both got married in dargah at Mysore and also
consummaged the marriage and out of the said
marriage We blessed with a baby girl, though our
respective family members were not aware of our
marriage, because we have not disclosed the same
on account of reasons stated supra, However, when I
was pregnant and due to acute stomach pain, I was
shifted to hospital. Wherein I delivered a baby girl,
but to our misfortune the hospital authority has
collected my Aadhar card, and they intimated to
police about my age being lesser than 18 years, As a
result the police has registered a case against my
husband and our respective family members, As a
matter of fact as on the date of FIR, I was a major,
even in the school, I was admitted lately on account
of poverty, as such just an approximate age was
entered in the school records and lesser age also
entered in my Aadhar card. Thus, I was considered
as minor based on that the police has registered a
case, consequently we and our respective family
members faced legal action, under the shadow of
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POCSO act which is not at all applicable to us. Hence
no option left, we are before this Hon'ble court to
save our marital life and avoid further complications
as well as to mould our daughter's future. Hence a
lenient view may be taken, while considering this
affidavit.
I, second party further state, since from my
childhood, I knew first party and right from
beginning, we were a very cordial with each other
and understanding in similar way, hence we have no
discrepancies in our thoughts, such being so, we
both always feel we made for each other due to
there reasons we got married and we are leading a
peaceful life in the Society, under such circumstances
if Hon'ble Court take stringent action against my
husband, then me and my daughter whole life will be
ruin and nobody will compensate in any manner.
Therefore, it is imperative to consider my request
which Iam expressing through this affidavit, same
maybe taken as part and parcel of main petition
which is pending before this Hon'ble Court.
I the first party undertake and guarantee this Hon'ble
court, I will take care of second party and my
daughter throughout my life and I will not give any
room for any kind of grievances or lamentation in our
whole marital life is concerned. Therefore, kindly
take a lenient view while considering this affidavit.
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Therefore, we both the parties humbly pray this
Hon'ble Court be pleased to consider the prayer urge
in the main petition on the above matter to meet the
ends of Justice and equity."
6. The Hon'ble Supreme Court in the case of GIAN SINGH VS.
STATE OF PUNJAB - (2012) 10 SCC 303 has held that power under
Section 482 of Cr.P.C. is required to be exercised to secure the
ends of justice and to prevent abuse of process of Court and these
powers can be exercised to quash the legal proceedings or
complaint or FIR in appropriate cases where the parties have
settled their dispute and for that purpose any definite category of
offence cannot be prescribed. In the case of PARBATBHAI AAHIR
VS. STATE OF GUJARAT - (2017) 9 SCC 641 the Hon'ble Supreme
Court has observed that the powers under Section 482 of Cr.P.C.
are not restricted by the provisions outlined under Section 320 of
Cr.P.C., which means, the High Court can exercise its inherent
powers independently notwithstanding the limitations under
Section 320 of Cr.P.C.
7. A coordinate bench of this Court in almost identical
circumstances in the case of MOHAMMAD WASEEM AHAMAD VS.
STATE - AIR Online 2022 KAR 314, in view of the settlement
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arrived between the parties after the accused and the victim got
married and the victim had given birth to a child, has quashed the
entire proceedings in the criminal case which was pending before
the Special Court for similar offences.
8. In the case of Aarush Jain vs. State of Karnataka and another
(Crl.P. No.3710/2022 DD 09.09.2022) a coordinate bench of this
Court has observed as follows:
"xxxxxxxxxxx It is an admitted fact that the
petitioner and the victim were close friends and were
infatuated to each other. Several Courts as quoted
hereinabove have considered the impact of hauling an
under aged boy into the web of the provisions under
the POCSO Act has clearly held that POCSO Act was
not meant to punish the accused who were in love with
the victims therein.
14. It is a known fact which bear consideration in
the aforequoted judgments, in physiological parlance,
that adolescence of a child is between 10 to 19 years
and young age is said to be between 20 to 24 years.
Therefore, adolescence is a continuum of development
process in the life of a child metamorphosing into
young age or an adult. It would not be inapt to notice
that young children or boys who have not yet reached
the age of 18 years, many a time, without realizing or
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being ignorant of the consequences of their act which
they perform in the frenzy of youth, emerge
themselves as offenders under the provisions of POCSO
Act and face serious consequences. Romantic love
between a boy and a girl of the age of adolescence
sometimes arising out of infatuations result in the boy
embroiling himself into the vortex of the provisions of
the POCSO Act.
15. The laudable object for which the POCSO Act
was brought into effect cannot be forgotten, but that
would not mean that it is meant to punish young
children who would fall in love and commit such acts
which would become punishable under the Act, a
caveat, this Court is not painting every incidence of
sexual activity of any kind that would become an
offence under the POCSO Act, with the same brush, but
there are cases of the kind, like the one at hand, where
the adolescents have indulged in such acts due to lack
of knowledge of consequence of law. xxxxxxxxxxxx".
9. No doubt Section 376 of IPC and Section 6 of the POCSO Act
are non-compoundable under Section 320 of Cr.P.C., however,
considering the observation made by the Hon'ble Supreme Court in
the case of Gian Singh and Parbatbhai, that the powers of the High
Court under Section 482 of Cr.P.C. are not restricted by the
provisions of Section 320 of Cr.P.C. and the inherent powers under
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Section 482 of Cr.P.C. can be exercised to quash the FIR or
criminal proceedings if this Court is of the considered opinion that
continuation of the criminal case is not in the interest of the parties
and on the other hand ends of justice would be secured if the
criminal proceedings is quashed, notwithstanding the fact that
alleged offences are non-compoundable, still this Court in
deserving cases can quash the entire proceedings.
10. The Hon'ble Supreme Court in the case of RAMGOPAL AND
ANOTHER VS. STATE OF MADHYA PRADESH - AIR 2022 (14) SCC
531 has held that even in cases involving non compoundable
offences where compromise is voluntary and allegations are private
in nature, extra ordinary powers of the High Court can be exercised
beyond the metes and bounds of Section 320 of Cr.P.C.
11. The High Court while exercising its power under Section 482
of Cr.P.C. in a case involving non-compoundable offence is required
to take into consideration the gravity of offences and also the
nature of offence. If the alleged offences are purely private in
nature and if it is between the close family members and if a
settlement is arrived between the parties who are close family
members who intend to give a quietus to all the disputes, High
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Court can quash such criminal proceedings. The High Court is
required to exercise such discretion taking into consideration the
facts and circumstances of the case surrounding the incident and
also the background in which the settlement has been arrived
between the parties having regard to the nature of the offences
and the conduct of the accused before and after the incident. Under
the circumstances, I am of the opinion that this is a fit case
wherein the inherent powers of this Court under Section 482 of
Cr.P.C. is required to be exercised to do complete justice to the
parties who are before this Court. Accordingly, the following order:
12. Criminal petition is allowed. In exercise of the inherent
powers under Section 482 of Cr.PC, the entire proceedings in Spl.
Case No.493/2023 pending before the Court of Addl. District &
Sessions Judge, FTSC-III, Bengaluru Rural District, arising out of
Crime No.295/2022 registered by Hebbagodi Police Station,
Bengaluru District, for the offences punishable under Section 376
IPC, Sections 6 & 21 of POCSO Act, and Section 9 of the Prohibition
Child Marriage Act, stands quashed.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
KK
