S.Sathish Kumar vs The State Rep By
2022 Latest Caselaw 8842 Mad

                                                                                    Crl.OP.No.7837 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 27.04.2022

                                                           CORAM

                       THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                                    Crl.O.P.No.7837 of 2022

               S.Sathish Kumar                                                    ... Petitioner
                                                             Vs.

               1.The State rep by
                 The Inspector of Police,
                 K.V.Kuppam Police Station,
                 Vellore District.
                (Crime No.299/2018)

               2.S.Venkatesan                                                     ... Respondents

               PRAYER: This Criminal Original Petition filed under Section 482 of Cr.P.C., to
               call for the entire records in pursuant to the charge sheet in SPL.S.C.No.94 of
               2019 in Cr.No.299 of 2018 dated 11.08.2018 pending on the file of the Special
               Court for Exclusive Trial of Cases under POCSO Act, 2012 at Vellore and quash
               the same.


                                   For Petitioner      : Ms.A.Anusuya
                                   For Respondent      : Mr.A.Gokulakrishnan
                                                        Additional Public Prosecutor for R1


               1/21


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                                                                                     Crl.OP.No.7837 of 2022


                                                       ORDER

This Criminal Original Petition has been filed to call for the entire records

in pursuant to the charge sheet in SPL.S.C.No.94 of 2019 in Cr.No.299 of 2018

dated 11.08.2018 pending on the file of the Special Court for Exclusive Trial of

Cases under POCSO Act, 2012 at Vellore and quash the same.

2.The brief facts of the case is as follows:-

Based on the complaint given by the 2nd

respondent/S.Venkatesan/defacto complainant had preferred a complaint on

11.08.2018 before the 1st respondent police that his daughter namely V.Jothika

(minor aged 17 years) who was studying B.Sc., 2nd year in Abirami Arts and

Science College at Gudiyatham was found missing. The case in Cr.No.299 of

2018 was registered by the respondent police under the caption "girl missing".

Thereafter, during the course of investigation it came to light that the

petitioner/A1 had kidnapped the victim from the lawful guardianship of the

defacto complainant and had committed an offences punishable under Section 363

and 366 of IPC and in the same incident he had taken her to nearby Amman

Temple and the A2, the cousin of the petitioner herein had helped A1 to perform

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child marriage with the victim by tying thali around the neck of the victim.

Thereby, committed an offences punishable under Section 9 of the Prohibition of

Child Marriage Act, 2006 and A2 had committed an offence punishable under

Section 10 of the Prohibition of the Child Marriage Act, 2006. In the course of

the same incident between 11.08.2018 and 15.08.2018, the A1 had taken the

victim to his house at Sholinghapuram and repeatedly committed penetrative and

sexual assault, thereby the petitioner had committed an offences punishable under

Section 6 r/w 5(1) of the Protection of Child from Sexual Offences Act, 2012.

Thereafter, the respondent after completion of the investigation had filed the final

report as against the accused for an offences under Section 5(1), 6 and 17 of

Protection of Child from Sexual Offences Act, 2012, Sections 363 and 366 of IPC

and Sections 9 and 10 of Child Marriage Restraint Act, 1929.

3. The case has been taken up in Spl.S.C.No.94 of 2019 on the file of the

Special Court for Exclusive Trial of Cases under POCSO Act, 2012 Vellore and

the case is pending trial. The present petition has been filed seeking to quash the

proceedings on the terms of compromise between the petitioner and the victim.

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4. The learned counsel for the petitioner would submit that the victim and

the petitioner were hail from the same vicinity and they belong to two different

communities, they were in love with each other. During the relevant time, the

victim was studying in B.Sc., 2nd year at Abirami Arts and Science College,

Gudiyatham, coming to know about the love affair, the defacto complainant/father

of the victim had compelled her to marry someone against her choice and

preparation were made for the marriage against her wishes. Thereby, the victim

eloped from the house and joined the petitioner and they got married in a temple

on the same day. The victim was born on 09.07.2000 and on the date of

occurrence/elopement on 11.08.218, she was 18years and 1month old and she was

not a child, whereas, the father of the victim had given a false complaint as if the

victim was minor, based on which the case was registered. Subsequently, coming

to know of the registration of the case the petitioner and the victim voluntarily

surrendered before the police and the petitioner/A1 and his cousin/A2 were

arrested and they were granted bail by this Court in Crl.O.P.Nos.21470 and 21471

of 2018 dated 06.09.2018. Meanwhile, the victim was taken on custody by the

defacto complainant. The petitioner had filed HCP.No.2313 of 2018 before this

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Court seeking for production of the victim girl, pursuant to which, the victim was

produced before this Court on 12.11.2018. Before the Division Bench of this

Court, the victim girl informed that she had married the petitioner and thereby she

was allowed to join the petitioner.

5. The learned counsel would further submit that the petitioner is working

as a Sephoy in the Indian Army and he had taken the victim/his wife along with

him to his place of employment. After the marriage, the victim has also delivered

a male child on 28.08.2019 and the child has been named as S.Hirthik and the

child is now 2 1/2 years old. The names of the wife and child/S.Hirthik were

added in the Army service record of the petitioner and the petitioner is serving

under 18MADRAS (Mysore), The Madras Regiment and now posted at Delhi.

She would further submit that the parents and the relatives of the petitioner had

accepted the marriage and taking care of the entire family. Whereas, the defacto

complainant who is antoganized has not reconciled with the victim and the

petitioner and he is not interested in compromising the matter.

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6. The learned counsel would further submit that the registration of the case

and the filing of the final report and further proceedings is nothing but an abuse of

process of law. The case of the defacto complainant is that he had given a

complaint as if his daughter was a minor on 11.08.2018, whereas the fact remains

that the victim was born on 09.07.2000 and on the date of occurrence, the victim

had completed 18years and she was free to choose her own will, however, the

second respondent/defacto complainant being a Government Servant abused his

position and given a false complaint as if his daughter was less than 18years.

Based on the false complaint, a case was originally registered in Cr.No.299 of

2018 under the caption "girl missing" coming to know of the case, the petitioner

and the victim were surrendered before the respondent police. However, the

petitioner was arrested and he was remanded to judicial custody. Thereafter, the

police have also without taking into consideration that the victim was not a child

on the date of occurrence had filed the final report for the offence under Sections

5(1), 6 and 17 of Protection of Child from Sexual Offences Act, 2012, Sections

363 and 366 of IPC and Sections 9 and 10 of Child Marriage Restraint Act, 1929.

On this score also, the petition is liable to be quashed on merits. The offence

alleged against the petitioner would also not be attracted.

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7. The learned Additional Public Prosecutor would submit that based on the

complaint given by the second respondent/S.Venkatesan/defacto complainant

father of the victim that his minor daughter was missing a case in Cr.No.299 of

2018 was registered under the caption "girl missing" after registration of the case,

the petitioner surrendered along with the victim and he was arrested. Thereafter,

the respondent continued with the investigation and filed final report for the

offence under Sections 5(1), 6 and 17 of Protection of Child from Sexual

Offences Act, 2012, Sections 363 and 366 of IPC and Sections 9 and 10 of Child

Marriage Restraint Act, 1929 and the case is now pending trial on the file of the

Special Court for Exclusive Trial of cases under POCSO Act, 2012, Vellore . He

would further submit that as instructed by this Court, the respondent police have

intimated the second respondent about the pendency of the quash petition and that

he has not shown any interest in pursuing the matter. The respondent police

would also confirm that the second respondent has been put on notice.

8. The learned Additional Public Prosecutor would further submit that

earlier the petitioner had filed HCP.No.2313 of 2018 before this Court and the

victim girl was produced before this Court and this Court finding that they were

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married had permitted the victim to join the petitioner on 12.11.2018. He would

further submit that as per the instructions of the respondent/police it is learnt that

the victim and the petitioner are married and they have got a child and both of

them are living at Delhi. He would also confirm that as per the transfer certificate

issued by the Saraswathi Vidyalaya Matriculation Higher Secondary School in

Sl.No.768 and Admn.No.1454/07-06-2010, the victim was born on 09.07.2000.

9. The petitioner and the alleged victim are present before this Court, this

Court enquired both of them. The petitioner submits that he belong to a lower

strata in the society and the alleged victim/Jothika belongs to the upper caste

community. He would submit that coming to know of their love affair, her father

wanted to separate them and he had forced her to marry someone against her

choice, thereafter, after attaining majority she eloped from the house and got

married to the petitioner. Due to the pressure given by the father of the victim girl

a false case has been registered. The petitioner and his cousin had surrendered

before the respondent police and they were arrested and released on bail and after

completing investigation the final report has been filed.

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10. This Court also enquired the victim girl, she would submit that she was

born on 09.07.2000 and in support of her claim she produced the transfer

certificate issued by Saraswathi Vidyalaya Matriculation Higher Secondary

School in Sl.No.768 and Admn.No.1454/07-06-2010. She submitted that she

belongs to upper caste community and the petitioner/her husband belong to SC

community and that her father in order to separate them had given a false

complaint, as if she was minor and based on the false complaint, the respondent

has registered a case and filed the final report. She would also submit that she had

delivered a male child and that her name and her child's name has been entered in

the service register of the petitioner who is working for Indian Army. Both the

petitioner and the alleged victim would submit that they do not want to proceed

against the defacto complainant or the police for registering a false case against

the petitioner.

11. Heard the learned counsel appearing for the petitioner and the learned

Additional Public Prosecutor appearing for the 1st respondent and perused the

materials available on record and the joint compromise memo dated 12.04.2022

signed by both the parties.

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12. In Gian Singh vs. State of Punjab [2012 (10) SCC 303], the Supreme

Court has held as follows:

"61. The position that emerges from the above discussion can be summarized thus: the 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 FIR may be exercised where the offender and the 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 a serious impact on society."

13. In Narinder Singh v. State of Punjab [2014(6) SCC 466], after

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considering the Gian Singh's case referred to above, the Hon'ble Supreme Court

has held as follows :-

29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the

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Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases."

14. In Parbatbhai Aahir v. State of Gujarat [AIR 2017 SC 4843], the

Supreme Court held thus"

"(1) Section 482 CrPC preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inherent in the High Court.

(2) The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a

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settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 CrPC. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

(3) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

(4) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised (i) to secure the ends of justice, or

(ii) to prevent an abuse of the process of any court.

(5) the decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulate.

(6) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the

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victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.

(7) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned.

(8) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.

(9) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and (10) There is yet an exception to the principle set out in Propositions (8) and (9) above. Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act

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complained of upon the financial or economic system will weigh in the balance."

15. Subsequently, a three judges bench of the Hon'ble Apex Court in State

of Madhya Pradesh v. Laxmi Narayan reported in (2019) 5 SCC 688 the

Hon'ble Supreme Court, considering all the above judgments, has held as follows:

i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;

iii) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender;

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iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances

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stated hereinabove;

v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, 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."

16. Keeping the above principles in mind, let us now consider the instant

case as to whether it is a fit case to quash the criminal proceedings based on the

settlement arrived at between the parties.

17. In the case on hand, the petitioner is charged for the offences punishable

under Sections 5(1), 6 and 17 of Protection of Child from Sexual Offences Act,

2012, Sections 363 and 366 of IPC and Sections 9 and 10 of Child Marriage

Restraint Act, 1929. Further, it is now submitted that on the date of

occurrence/date of complaint, the victim/Jothika was a major, however due to the

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influence of the defacto complainant/second respondent/father of the alleged

victim who was a Government servant a case was registered initially under the

caption girl missing and thereafter it was altered for the offence under Section 363

and 366 IPC and ultimately a final report has been registered for the offence

referred to above. The victim has produced her birth certificate and as per the

birth certificate she was born on 09.07.2000 and on the date of occurrence she has

completed 18years. Whereas, the respondent police without taking into

consideration and without conducting a proper enquiry had filed the final report

for serious offence under the POCSO Act. The registration of the case and the

filing of the final report is nothing but an abuse of process of Court. Since,

because the petitioner belong to a lower strata in the society, the defacto

complainant using his influence had attempted to separate them and based on his

false complaint a case has been registered and the final report has been filed. The

continuation of the proceedings against the petitioner is nothing but an abuse of

process of law and the petition deserves to be allowed on merits also.

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18. Further, the petitioner and the victim have got married and due to

wedlock they have also got a male child. In the above circumstances, the

continuity of the criminal proceedings would only cause oppression, frustration

and prejudice to the parties. Further, in this case, the petitioner's cousin has also

been implicated as A2. In order to secure the ends of justice, this Court is inclined

to quash the proceedings as against the petitioner/A1 and his cousin/A2.

19. Accordingly, this Criminal Original Petition is allowed and the criminal

proceedings initiated against the petitioner/A1 and his Cousin/A2 in Spl.SC.No.

94 of 2019 in Cr.No.299 of 2018 pending on the file of the Special Court for

Exclusive Trial of Cases under POCSO Act, 2012 at Vellore is quashed in entirety

and joint compromise memo signed by the petitioner and the victim, shall form

part of Court records.

27.04.2022 Internet:Yes/No Speaking/Non Speaking order jas/tsh

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To

1.The Inspector of Police, K.V.Kuppam Police Station, Vellore District.

2.The Special Court for Exclusive Trial of Cases under POCSO Act, Vellore.

3.The Public Prosecutor, High Court of Madras.

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A.D.JAGADISH CHANDIRA.,J jas/tsh

Crl.O.P.No.7837 of 2022

27.04.2022

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