Karnataka High Court
Sri.Syed Samiulla vs State Of Karnataka on 30 May, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 4733 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 4733 OF 2024
BETWEEN:
1. SRI. SYED SAMIULLA
S/O SYED ALIMULLA
AGED ABOUT 23 YEARS
2. SRI. SYED ALIMULLA
S/O SYED KAREEM SAB
AGED ABOUT 52 YEARS
3. MRS. AYISHA BANU
W/O SYED ALEEM ULLA
AGED ABOUT 44 YEARS
PETITIONER NO.1 TO 3 ARE
R/AT DODDAPETE
Digitally signed
by NAGAVENI CHINTAMANI TOWN
Location: HIGH CHIKKABALLAPURA DISTRICT - 563 125.
COURT OF
KARNATAKA
4. SRI. DADA PEER
S/O SHAIK HYDER
AGED ABOUT 50 YEARS
5. MRS. HUSNA TAJ
W/O DADA PEER
AGED ABOUT 47 YEARS
PETITIONER NO.4 AND 5 ARE
R/AT JUHALLI VILLAGE
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CRL.P No. 4733 of 2024
KOLAR TALUK AND DISTRICT - 563 101.
...PETITIONERS
(BY SRI. SYED ZAHEERUDDIN BAREED, ADVOCATE)
AND:
1. STATE OF KARNATAKA
R/BY CHINTAMANI TOWN
POLICE STATION
THROUGH PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
2. MRS. KHATHUN B.,
W/O SYED SAMIULLA
AGED ABOUT 18 YEARS
R/AT DODDAPETE
CHINTAMANI TOWN
CHIKKABALLAPUR DISTRICT - 563 125.
...RESPONDENTS
(BY SRI. P.THEJESH, HCGP FOR R1;
SRI. NADEEM PASHA, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S 482 OF THE CR.P.C., PLEASED
TO QUASH THE FIR IN CR.NO.72/2024 REGISTERED BY THE
RESPONDENT NO.1, CHINTAMANI TOWN POLICE STATION
AGAINST THE PETITIONER NO.1 TO 5 / ACCUSED NO.1 TO 5,
FOR THE OFFENCE P/U/S 376(2)(n) OF THE IPC, SEC. 6 OF
POSCO ACT, 2012 AND SEC. 9 AND 10 OF PROHIBITION OF
CHILD MARRIAGE ACT, 2006.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.P No. 4733 of 2024
ORDER
The petitioners/accused Nos.1 to 5 are before this Court
calling in question registration of a crime in Crime No.72 of
2024 for the offences punishable under Section 376(2)(n) of
the IPC, Section 6 of the Protection of Children from Sexual
Offices Act, 2012 ('POCSO Act' for short) and Sections 9 and 10
of the Prohibition of Child Marriage Act, 2006 ('the Act' for
short), pending before the Additional Sessions Judge, Fast
Track Special Court-1, Chikkaballapura.
2. Facts, in brief, germane are as follows:-
A crime comes to be registered on 08-04-2024 against
the petitioners/accused Nos.1 to 5 based upon a statement of
one Khatoon Bi (hereinafter referred to as 'the victim' for the
sake of convenience) recorded by the Police pursuant to
registration of a crime in Crime No.72 of 2024. It is alleged
that the victim had in her statement stated that when she had
completed 9th standard and dropped out from the school at the
time when the entire nation was engulfed with COVID-19,
accused Nos.2 and 3 approached the parents of the victim and
placed a proposal for marriage of accused No.1 with the victim.
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The marriage was solemnized on 22-11-2022 and it leads to
the victim becoming pregnant. On the victim becoming
pregnant, she goes to the Primary Health Centre to get herself
checked. It is at that point in time, the victim reveals that her
marriage had taken place on 22-11-2022 and five months ago
she had become pregnant, at which point in time, the victim
was aged 17 years and 8 months. A crime comes to be
registered on the complaint of doctors, CDPO and others that
accused No.1 is guilty of offences punishable under the POCSO
Act as he had sexual relationship with a minor albeit after
marriage. It is, therefore, the offences punishable under
Section 376(2)(n) of the IPC, Section 6 of the POCSO Act and
Sections 9 and 10 of the Act are invoked against these
petitioners.
3. The issue is not on the merit of the matter. During the
pendency of investigation, members of the family on both sides
entered into a settlement and produced the settlement before
the Court. The issue now is, whether this Court would accept
the application for compounding of the offences alleged. The
affidavit narrates that there was no force or coercion on the
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part of the members of the family who have given the victim in
marriage. It is their defence that in their religion, marriage of
girls after 15 years is permitted and therefore, the two get
married. While that is a debatable question, I deem it
appropriate to accept the application for compounding of the
offences and close the proceedings against these accused for
reasons more than one.
4. There is no sexual assault or forcible sexual intercourse
in the case at hand by the husband/accused No.1 upon the
victim. The members of the families sit together and give the
victim in marriage to accused No.1. The marriage takes place
on 22-11-2022. The marriage naturally leads to the victim
becoming pregnant. She was aged 17 years and 8 months on
the date of consummation of marriage and now more than 18
years and is 6 months pregnant. The said issue need not detain
this Court for long or delve deep into the matter. The Apex
Court, a co-ordinate Bench of this Court and several High
Courts when posed with identical circumstances have all
permitted such closure of proceedings on account of settlement
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as the accused had indulged in sexual relationship upon the
victim only after marriage.
5. The Apex Court in the case of K. DHANDAPANI v.
STATE BY INSPECTOR OF POLICE reported in 2022 SCC
OnLine SC 1056 has held as follows:
"7. In the peculiar facts and circumstances of this case,
we are of the considered view that the conviction and sentence
of the appellant who is maternal uncle of the prosecutrix
deserves to be set aside in view of the subsequent events that
have been brought to the notice of this Court. This Court
cannot shut its eyes to the ground reality and disturb
the happy family life of the appellant and the
prosecutrix. We have been informed about the custom in
Tamilnadu of the marriage of a girl with the maternal
uncle."
(Emphasis supplied)
The Apex Court holds that the Court cannot shut its eyes to the
ground reality and disturb the happy family life of the
appellant, who was accused No.1 and the prosecutrix on being
informed that the custom in Tamilnadu was that marriage of a
girl in their custom would be with the maternal uncle. In the
said case the fact was that the first child was born when she
was 15 years and the second child was born when she was 17
years of the age. In a later judgment, the High Court of Punjab
and Haryana in the case of DEVENDER NATH v. STATE OF
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U.T. CHANDIGARH reported in 2024 SCC OnLine P & H
2034 has held as follows:
"12. Learned Amicus Curiae further submits that the
proximity of age between the petitioner and respondent no. 2
must be given due consideration and a compassionate view be
taken considering their young age. While teenage relationships
are looked at with disdain by the society, the law must
consider their consensual nature and the human tendency to
seek companionship. In view of the same, following
suggestions are made regarding quashing of such FIRs:
(a) Assessment of Voluntary Consent: It must be
ensured that if the alleged sexual act is claimed to
be consensual, it must emanate from a place of
volition, untainted by coercion, duress or undue
influence.
(b) Proximity in Age : Due regard must be given to
the age differential between the parties so as to
ascertain the nature of the relationship.
(c) Upholding the Best Interests of the Minors : The
welfare of the minors is the paramount
consideration which includes their psychological
well being and prospects of a dignified future.
(d) Acknowledgment of Socio-cultural Dynamics : An
assessment of such situations must duly consider
the socio-cultural context enveloping the
relationship.
(e) Engagement with Parental or Guardian
Perspectives : The insights and apprehensions of
parents or legal guardians or absence thereof
must be judiciously considered to ensure the
relationship does not go against the best interest
of the minors.
(f) Implication of Criminal Proceedings : It must be
contemplated that the perpetuation of criminal
proceedings can incite potential stigma, social
alienation and psychological afflictions on the
minors.
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(g) Mandate for Legal and Social Counseling : It is
incumbent upon the State to ensure that the
minors have been afforded comprehensive legal
and social counseling, facilitating informed
decision-making and a nuanced understanding of
legal contours and societal ramifications.
(h) Vigilance against Exploitation : No strait jacket
formula can be adopted for dealing with such
cases therefore the Courts must remain vigilant to
discern any indications of exploitation, abuse or
disparity in the relational dynamics ensuring the
relationship is rooted in mutual respect and
equality."
OBSERVATIONS AND ANALYSIS:
14. Having heard learned counsel for the parties and the
learned Amicus Curiae and after perusing the record with their
able assistance, it transpires that the marriage between
petitioner and respondent no. 2 was solemnised on
12.09.2022, with the blessings of their families, when
respondent no. 2 was a minor of the age of 17.5 years.
The couple had been blissfully residing together and
were on the family way when respondent no. 2 went to
the hospital for a check-up on 20.02.2023. No
complaints were made by respondent no. 2 or her
parents during the subsistence of the marriage or before
that. The genesis of the instant FIR lies in the reporting of
respondent no. 2's pregnancy by the doctors under
Section 19 of the POCSO Act. While the intent behind the
statutes criminalising sexual exploitation of women, especially
children is noble in all senses of the term, it must be
understood that application of such statutes cannot be
divorced from the reality of the situation. The criminal
proceedings have wreaked havoc on the lives of the instant
petitioner and his wife. The couple also, unfortunately, lost
their newborn child in the process of securing justice.
... ... ...
17. In the instant case, respondent no. 2 has been
happily married to the petitioner and has categorically
stated that she neither moved any complaint nor desires
further action against the petitioner. Respondent no. 2
has attained the age of majority and wants to continue
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with her matrimonial life. If the criminal proceedings
against the petitioner allowed to continue, not only will
it lead to unnecessary incarceration of the petitioner but
also leave respondent no. 2 bereft of financial and
emotional support. Therefore, this Court is of the
considered view that justice can only be substantially
realised if the FIR in the present case is quashed, in
view of the compromise entered into between the
parties.
18. In view of the above discussion, the present petition
is allowed and FIR No. 13 dated 20.02.2023 registered under
Section 376(2)(n) of the IPC and Section 6 of POCSO Act at
Police Station Sarangpur, Chandigarh and its subsequent
proceedings are quashed. However, before parting with this
order, this Court appreciates the valuable and effective
assistance rendered by Mr. Vaibhav Sharma, Advocate
as amicus curiae."
(Emphasis supplied)
The High Court observes that the marriage between the
petitioner and the victim was solemnized on 12-09-2022 with
the blessing of their respective families at which time, the
victim was a minor aged 17.5 years. The couple had been
blissfully residing together and were on the family way. When
the victim goes to the hospital for check up at which point in
time, the crime emerges. There were no complaints with the
Police registered either that the daughter had gone missing or
the accused had indulged in any sexual assault. Based upon
this, permitting to lead a happy married life the High Court
accepted the settlement and quashed the proceedings against
the accused therein. It is apt here to refer to the judgment of
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the High Court of Delhi in somewhat similar circumstance
reported in AMAR KUMAR v. STATE (GOVT. OF NCT OF
DELHI) reported in 2023 SCC OnLine Del 8452. The facts
obtaining are found at paragraph 4 and they read as follows:
"4. The present FIR bearing no. 0843/2020 under
sections 376/506/34 IPC & section 4 of Protection of Children
from Sexual Offences Act, 2012 (POCSO Act) at P.S. Samaipur
Badli was got registered at the instance of respondent no. 2. It
is reflecting that the petitioner no. 1 and respondent no.
2 after liking each other had developed intimacy. The
respondent no. 2 came to know about her pregnancy
with petitioner no. 1 and subsequently delivered a child.
The respondent no. 2 was stated to be a minor at the
time of registration of FIR on 21.12.2020. The
statements of the respondent no. 2 were recorded under
section 161 and section 164 Cr. P.C. wherein the
respondent no. 2 primarily stated that she had a
relationship with the petitioner no. 1 out of her own free
will and subsequently came to know about her
pregnancy with the petitioner no. 1 and thereafter they
got married with each other. After conclusion of the
investigation, the charge-sheet was filed and the trial is stated
to be pending in the court of Ms. Richa Gusain Solanki, ASJ,
North, Rohini Courts, Delhi."
(Emphasis supplied)
Answering the said facts, the High Court of Delhi holds as
follows:
"10. The Supreme Court regarding the quashing of FIR
registered under section 376 IPC in Gian Singh v. State of
Punjab, (2012) 10 SCC 303 laid down following principles:--
"57. The position that emerges from the
above discussion can be summarised thus : the
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power of the High Court in quashing a criminal
proceeding or FIR or complaint in exercise of its
inherent jurisdiction is distinct and different from
the power given to a criminal court for
compounding the offences Under Section 320 of
the Code. Inherent power is of wide plenitude
with no statutory limitation but it has to be
exercised in accord with the guideline engrafted
in such power viz; (i) to secure the ends of
justice or (ii) to prevent abuse of the process of
any Court. In what cases power to quash the
criminal proceeding or complaint or F.I.R. may be
exercised where the offender and victim have
settled their dispute would depend on the facts
and circumstances of each case and no category
can be prescribed. However, before exercise of
such power, the High Court must have due regard
to the nature and gravity of the crime. Heinous
and serious offences of mental depravity or
offences like murder, rape, dacoity, etc. cannot
be fittingly quashed even though the victim or
victim's family and the offender have settled the
dispute. Such offences are not private in nature
and have serious impact on society. Similarly, any
compromise between the victim and offender in
relation to the offences under special statutes
like Prevention of Corruption Act or the offences
committed by public servants while working in
that capacity etc; cannot provide for any basis for
quashing criminal proceedings involving such
offences. But the criminal cases having
overwhelmingly and pre-dominatingly civil favour
stand on different footing for the purposes of
quashing, particularly the offences arising from
commercial, financial, mercantile, civil,
partnership or such like transactions or the
offences arising out of matrimony relating to
dowry, etc. or the family disputes where the
wrong is basically private or personal in nature
and the parties have resolved their entire
dispute. In this category of cases, High Court may
quash criminal proceedings if in its view, because
of the compromise between the offender and
victim, the possibility of conviction is remote and
bleak and continuation of criminal case would put
accused to great oppression and prejudice and
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extreme injustice would be caused to him by not
quashing the criminal case despite full and
complete settlement and compromise with the
victim. In other words, the High Court must
consider whether it would be unfair or contrary
to the interest of justice to continue with the
criminal proceeding or continuation of the
criminal proceeding would tantamount to abuse
of process of law despite settlement and
compromise between the victim and wrongdoer
and whether to secure the ends of justice, it is
appropriate that criminal case is put to an end
and if the answer to the above question(s) is in
affirmative, the High Court shall be well within its
jurisdiction to quash the criminal proceeding.
... ... ...
14. The High Court should quash criminal
proceedings where possibility of conviction is remote
and bleak and continuation of criminal case is causing
great oppression and prejudice to the accused and
extreme injustice would be caused to him and to put an
end to criminal case would be appropriate. The Supreme
Court in State of Madhya Pradesh v. Laxmi Narayan besides
reiterating principles laid down in Gian Singh case observed
that while exercising the power under section 482 of the Code
to quash the criminal proceedings in respect of non-
compoundable offences, the High Court is required to consider
the antecedents of the accused; the conduct of the accused,
namely, whether the accused was absconding and why he was
absconding, how he had managed with the complainant to
enter into a compromise, etc. The Supreme Court
in Ramgopal v. State of Madhya Pradesh observed that the
High Court after considering peculiar facts and circumstances
of a case and for justifiable reasons can press Section 482 of
the Code in aid to prevent abuse of the process of any Court
and/or to secure the ends of justice. It was further observed
that the High Court can quash non compoundable offences
after considering nature of the offence and amicable
settlement between the concerned parties. The High Court can
evaluate the consequential effects of the offence and need to
adopt a pragmatic approach to ensure that quashing does not
paralyze the very object of the administration of criminal
justice system. It was further observed that a restrictive
construction of inherent powers under Section 482 of Cr.
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P.C. may lead to rigid or specious justice which may lead to
grave injustice."
(Emphasis supplied)
The High Court holds that when conviction is remote and bleak,
continuation of criminal case would cause great oppression and
prejudice and, therefore, to put an end to a criminal case, it
would become appropriate to step in and quash the
proceedings.
6. A co-ordinate Bench of this Court in MOHAMMAD
WASEEM AHAMAD v. STATE in Criminal Petition No.5917
of 2022 decided on 10th October, 2022 has considered this
very issue of the victim being 17 years and 2 months when she
became pregnant and noticing marriage according to the
custom, closed the issue accepting the settlement and
compounded the offence.
7. In the teeth of the aforesaid judgments rendered by
the Apex Court and that of other High Courts including this
Court, it becomes germane to notice the joint affidavit filed by
the parties. It reads as follows:-
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"JOINT AFFIDAVIT
1. We the Petitioners No. 1 to 5, herein submits that the
memorandum of main Petition may be read as part and
parcel of this Affidavit to avoid reputations.
2. We the Petitioner No. 01 and the Respondent No. 02,
submits that we both are Husband and wife respectively
and the Petitioner No. 02 and 03 are the Father and Mother
of the Petitioner No. 1 and Petitioner No. 04 and 05 are the
father and Mother of the Respondent No. 02, respectively.
3. We the Petitioner No. 01 and the Respondent No. 02, herein
submits that the Respondent No. 01. Chintamani Town
Police Station had registered a case in Crime No. 72/2024,
for the Offences Punishable Under Section 376(2)(n) of the
Indian Penal Code 1860, Section 6 of POSCO Act 2012, and
Section 9 and 10 of Prohibitions of Child Marriage Act 2006
Pending on the File of Additional Sessions Judge Fast Tract
Special Court 1, At Chikkaballapura.
4. We the Petitioner No. 01 and Respondent No. 02, submits
that the marriage between us was an arrange marriage and
we both are living happily without any dispute among both
of us.
5. I the Respondent No. 02, herein submits that on the date of
the marriage that is 22-11-2022, I had attained puberty
and I was aged about 16 Years 6 Months and none of the
Petitioners herein had forced me to get married with the
Petitioner No. 01 and I had given my consent for the said
marriage.
6. I the Respondent No. 02, herein submits that I have never
approached the Respondent No. 01, Police to Register a
Case against the Petitioner No. 01 to 05 herein, the alleged
case was registered by the Respondent No. 01, Police
against my Husband the Petitioner No. 01 herein and the
Father-in-Law, Mother-in-Law and my Father and mother in
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active collusion with the CWC and CDPO Officials and I do
not want to continue the same.
7. I the Respondent No. 02, herein, submit that I am a 5
months Pregnant and I am totally dependent on the
Petitioner No. 01, who is my Husband and he never
harassed me sexually as alleged in the alleged Complaint
and I and the Petitioner No. 1, got married with our own
wish and will without any force, coercion or any fraud from
any of the Petitioners herein.
8. I the Respondent No. 02, herein submits that now I am
aged about 18 Years and I am competent to sign this
Affidavit and all other papers and there is no force or
coercion from any one to sign the same and I am before
this Hon'ble Court with my free will."
It is an admitted fact that accused No.1 and the victim were
given in marriage by the elders of the families. It is contended
that their custom permits marriage beyond 15 years of age of a
girl. The marriage has led to the victim becoming pregnant
when she was 17 years and 2 months. There was no complaint
from any quarter of the members of the families of any sexual
assault which would bring in ingredients of Section 6 of the
POCSO Act or repeated rape of a minor as found in Section
376(2)(n) of the IPC.
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8. It is a case of marriage. To-day, the members of the
family are before this Court seeking compounding on various
circumstances, one of which is the victim who is 6 months
pregnant would be left in the lurch on the husband being in
custody and if the husband is not with the wife at this moment
anything may happen to the life of the victim and would have
an impact upon the child. These are factors on which this Court
cannot shut its eyes in the vehement opposition by the State
contending that it is an offence punishable under the POCSO
Act or rape under Section 376(2)(n) of the IPC and it should
not be permitted to be compounded. If it is not compounded
the family of the victim would be put to grave jeopardy,
condemned by penury as the husband of the victim is the only
earning member of the family. It would have disastrous effect
upon the victim and the new born child if the accused is left to
languish in the prison till conclusion of trial and in such a case,
it is imminent that the trial would end in acquittal of the
accused. In such circumstances, this Court would not show
hands off approach without looking into the ground reality and
coming to the aid of the family that is driven to streets.
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9. In cases where the conviction of the accused is too
bleak, it would be highly unjust to permit criminal prosecution
to be continued as it is the journey in the criminal justice
system till the date of acquittal that would be more agonizing
than the happiness of acquittal. Therefore, it would
undoubtedly result in injustice to the victim and the family.
Allowing of the application for compounding would permit their
well being.
10. For the aforesaid reasons, the following:
ORDER
(i) Criminal petition is disposed of.
(ii) The application seeking compounding of the offence
is allowed and the crime in Crime No.72 of 2024,
stands quashed.
Sd/-
JUDGE
NVJ
CT:SS
