Deepesh @ Deepak Lodhi vs The State Of Madhya Pradesh
2024 Latest Caselaw 6352 MP

Madhya Pradesh High Court

Deepesh @ Deepak Lodhi vs The State Of Madhya Pradesh on 1 March, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                                1


   IN THE HIGH COURT OF MADHYA PRADESH
               AT JABALPUR
                          BEFORE
       HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                 ON THE 1st OF MARCH, 2024
               MISC. CRIMINAL CASE No. 3463 of 2024

  BETWEEN:-

  DEEPESH @ DEEPAK LODHI S/O DEVI SINGH
  LODHI, AGED ABOUT 26 YEARS, OCCUPATION:
  SELF EMPLOYED R/O VILLAGE DEVRI PS DEVRI
  DISTRICT RAISEN (MADHYA PRADESH)
                                                       .....PETITIONER
  (BY SHRI PRAMENDRA SINGH THAKUR - ADVOCATE)

  AND

  1.    THE STATE OF MADHYA PRADESH
        THROUGH POLICE STATION DEVNAGAR
        DISTRICT RAISEN (MADHYA PRADESH)

  2.    VICTIM A D/O NOT MENTION              NOT
        MENTION (MADHYA PRADESH)
                                                     .....RESPONDENTS
   (RESPONDENT NO.1 BY SMT.SWATI A.GEORGE - DEPUTY GOVT. ADVOCATE)
   (RESPONDENT NO.2 BY SHRI SUGHOSH BHAMORE - ADVOCATE)

        This application coming on for admission this day, the court
  passed the following:
                                ORDER

1. This application under section 482 CRPC has been filed for quashment of FIR dated 15.10.2017 lodged against the applicant in Crime No.203/2017 at Police Station Devnagar, District Raisen for the offence under section 363, 376, of I.P.C. and section 3/4 of the

Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act').

2. It is submitted by counsel for the parties that the prosecutrix as well as the applicant eloped in the year 2017 and they were recovered on 15.9.2019. Admittedly, the prosecutrix was minor, aged about 16 years, on the date of FIR. The evidence of the prosecutrix has been recorded in which she has specifically stated that after eloping with the applicant she was not ravished by the applicant and no physical relationship took place. It is submitted that at present the prosecutrix is blessed with two children out of the wedlock of the applicant and the respondent No.2 and, therefore, continuation of prosecution would be bad in law. Accordingly, by order dated 12.2.2024 a coordinate bench of this Court had directed the parties to appear before the Registrar (Judicial II) for recording of their statements on 20.2.2024 for verification of factum of compromise. The report has been submitted in a sealed cover. The Registrar (Judicial II) has submitted his report as under :-

"I personally posed questions to victim-A to verify about the voluntariness of the proposed compromise. She has expressed that, she has voluntarily entered into a compromise with her free will and volition and without any threat and inducement from the applicant, namely Deepesh @ Deepak, (now husband), who is present before the undersigned to settle her dispute and they have blessed with two children.

I satisfied myself about the fact that victim-A did not appear to be under any threat, inducement or pressure in entering into compromise as proposed.

Both parties appeared before the undersigned and submitted that they have amicably resolved the disputes

between themselves and now, their matter stands fully and finally settled.

Therefore, the proposed compromise stands verified".

3. Considered the submissions made by counsel for the parties as well as the report submitted by the Registrar (Judicial II).

4. Registrar (Judicial II) has recorded the statement of the prosecutrix tricks who has stated that in the year 2017 a 'Gum Insaan' report was lodged by her father B. The said offence was committed by the applicant and, accordingly, a case was registered and the applicant has already been convicted. It was further stated that on 15.2.2020 she has married the applicant and is blessed with two children. It was further stated that her father is not present. Thus, the complainant did not appear before the Registrar (Judicial II).

5. Now the following questions arise for adjudication :-

i) Whether the prosecution can be quashed on the basis of compromise between the accused and the witnesses and whether the statement of the complainant, i.e. father of the prosecutrix is essential ?

ii) Admittedly, the prosecutrix was minor at the time of her kidnapping, then whether the case can be quashed merely on the ground that accused and the prosecutrix have married ?

iii) Whether the mere fact that the prosecutrix has turned hostile before the trial Court is sufficient to quash the proceedings ?

Whether the prosecution can be quashed on the basis of compromise between the accused and the witnesses and whether

the statement of the complainant, i.e. father of the prosecutrix is essential ?

6. Offence under section 363 of IPC reads as :-

363. Punishment for kidnapping --Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

7. The Supreme Court in the case of Anver Singh Vs. State of Gujarat reported in (2021) 3 SCC 12 has held as under :

13. A perusal of Section 361 IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child's minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian.

Such "enticement" need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. However, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home as happened in King Emperor v. Gokaran and Emperor v. Abdur Rahman.

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17. Similarly, Section 366 IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.

18. The ratio of S. Varadarajan, although attractive at first glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of "taking" and not "enticement". Further, this Court in S.

Varadarajan explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on the part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.

8. Thus, it is clear that the offence under section 363 of I.P.C. is against the guardian and unless and until the complainant enters into compromise, the proceedings cannot be quashed in exercise of power under section 482 Cr.P.C.

Admittedly, the prosecutrix was minor at the time of her kidnapping, then whether the case can be quashed merely on the ground that accused and the prosecutrix have married ?

9. Admittedly, the prosecutrix was minor on the date when she eloped with the applicant. As already held that the offence under section 363 IPC is against the parents/ guardian. Merely because minor girl after attaining majority has married the accused may not be a good ground to quash the proceedings because an act which was otherwise an offense under the provisions of IPC or under the provisions of the POCSO Act cannot be rectified by marrying the minor girl. Therefore, if the prosecutrix has married the applicant after attaining majority still, this Court is of considered opinion that the prosecution cannot be quashed for the simple reason that father of the prosecutrix, who is complainant of missing person report, has not agreed for the said

compromise and only because of compromise between the accused and the witness, the prosecution cannot be quashed. Whether the mere fact that the prosecutrix has turned hostile before the trial Court is sufficient to quash the proceedings ?

10. Counsel for the applicant has provided a copy of the deposition sheet of the prosecutrix. In the deposition sheet she has stated that prior to her recovery, they did not have any physical relationship. Accordingly, counsel for the applicant was directed to read out the MLC report of the prosecutrix, which was done on the date of her recovery. It was fairly conceded by counsel for the applicant that her hymen was found torn and semen was found present.

11. The Supreme Court in the case of Hemudan Nanbha Gadhvi vs. State of Gujarat, passed on 28.9.2018 in Criminal Appeal No.913/2016, has held that even if a minor prosecutrix has turned hostile, still the accused can be convicted on the basis of scientific evidence.

12. Under these circumstances, this Court is of considered opinion that no case is made out for quashing the proceedings on the basis of compromise.

13. Accordingly, the application fails and is hereby dismissed.

(G.S.AHLUWALIA) JUDGE

HS