Madras High Court

S.Azith vs The State Represented By on 3 November, 2022

                                                                                 Crl.A.No.247 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 03.11.2022

                                                       CORAM:

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                Crl.A.No.247 of 2018

                S.Azith                                                ... Appellant/accused


                                                         Vs.

                The State represented by
                The Inspector of Police,
                Namagiripettai Police Station,
                Namakkal District
                (crime No.207 of 2015)                                             ... Respondent


                PRAYER:


                          Criminal Appeal filed under Section 374 (2) of Code of Criminal

                Procedure, to set aside the order of conviction passed by the learned Judge in

                Spl.CC.No.45 of 2015 dated 19.02.2018 passed by the learned Sessions (Fast

                Track Mahila) Judge, Namakkal.


                                       For Appellant   : Mr.K.A.Mariappan

                                       For Respondent : Mr.A.Gopinath,
                                                        Government Advocate(crl.side)

https://www.mhc.tn.gov.in/judis
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                                                                                     Crl.A.No.247 of 2018

                                                       JUDGMENT

This criminal appeal is directed as against the order of conviction

passed in Spl.CC.No.45 of 2015 dated 19.02.2018 by the learned Sessions

(Fast Track Mahila) Judge, Namakkal.

2. While pending this appeal, the sentence of the appellant was

suspended by this Court. Thereafter, the victim girl and the appellant joined

together and are living happily. Though they could not register their marriage,

they produced the receipt issued by Arulmigu Baladhandayudhapani Thirukovil

to prove their marriage. It is also seen that their photos are affixed in the receipt.

Though they joined together, their parents are not willing for their marriage.

However, the victim girl attained majority and she is living with the appellant

happily. They also filed joint affidavit to that effect before this Cort. Relevant

portion of the joint affidavit dated 03.11.2022 is extracted hereunder:

I, S.Ajith, son of Subramani, Hindu, aged about 27 years, residing at Door No.14/141A, Sathya Nagar, R.Pudupatti, Rasipuram Taluka, Namakkal District, now temporarily come down to Chennai, do hereby solemnly affirm and sincerely states as follows:

I am the first deponent herein and I submit as follows:

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Crl.A.No.247 of 2018

I, R.Deepa Lakshmi, wife of S.Ajith, daughter of Raji, Hindu, aged about 24 years, residing at Door No.14/141A, Sathya Nagar, R.Pudupatti, Rasipuram Taluka, Namakkal District, now temporarily come down to Chennai, do hereby somenly affirm and sincerely state as follows:

I am the second deponent herein and I submit as follows:

1. It is submitted that the first deponent and the second deponent loved each other and both eloped, got married in a temple and on the complaint of the second deponent's parents, a case in crime No.207 of 2015 under Section 366(A) IPC and Section 5(1) r/w 6 of POCSO Act, 2012 was came to be registered, charge sheeted in Spl.CC.No.45 of 2015 and after trial, the first deponent was convicted by the Sessions (Fast Track Mahila) Judge, Namakkal. As against the order of conviction, above appeal was filed.

2. It is submitted that the first deponent after coming out on bail, approached the parents of the second deponent with an intention of marrying the second deponent and since the parents of the second deponent did not agree for giving in marriage of their daughter to the first deponent, both the deponents have decided to marry without the consent of their respective Parents and accordingly the marriage of the deponents was solemnized on 03.09.2019 at Arulmighu Baladhandayuthapani Swamy Temple, Gandhinagar,

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Crl.A.No.247 of 2018

Mohanur Road, Namakkal District in the presence of friends. It is submitted that though the deponents have attempted to register their marriage with the Registrar of Marriages, the same could not be materialized for the reason of non-co- operation of their respective parents.

3. It is submitted that both after marriage residing at the above address and living happily. It is submitted that when the above appeal came for hearing, the counsel for the appellant reported before this Hon'ble Court about the solemnization of the marriage between the deponents herein and both of them appeared before this Hon'ble Court along with their respective Aadhar Cards and the Marriage certificate issued by the said Arulmighu Baladhandayuthapani Swamy Temple, Gandhinagar, Mohanur Road, Namakkal District

4. The First Deponent by swearing this affidavit undertakes that he will take care of the second deponent till his life time and further undertakes that he never abandon or separate from the second deponent for whatever reasons, if it arises in future.

Hence this joint affidavit filed by both the appellant and the victim girl before this Hon'ble Court.

It is therefore prayed that this Hon'ble Court may be pleased to record the above joint affidavit filed by the appellant and the victim girl in the above case and pass

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Crl.A.No.247 of 2018

suitable order as this Hon'ble Court may deem fit and thus render justice.

3. The joint affidavit shows that they compromised the issue amicably

and are living together happily. Further, today both the appellant and the victim

are present before this Court. The victim deposed that she is living with the

appellant for the past four years happily and she has no objection to set aside

the conviction imposed on the appellant due to their wedlock and living together

happily.

4. In this regard, it is relevant to rely upon the judgment of the

Hon'ble Supreme Court of India in the case of Ramgopal and others vs. The

State of Madhya Pradesh reported in 2021 (6) CTC 240 and the relevant

paragraphs are extracted hereunder:-

18. It is now a well crystalized axiom that the plenary jurisdiction of this Court to impart complete justice under Article 142 cannot ipso facto be limited or restricted by ordinary statutory provisions. It is also noteworthy that even in the absence of an express provision akin to Section 482 Cr.P.C. conferring powers on the Supreme Court to abrogate and set aside criminal proceedings, the jurisdiction exercisable under Article 142 of the Constitution embraces this https://www.mhc.tn.gov.in/judis

Crl.A.No.247 of 2018

Court with scopious powers to quash criminal proceedings also, so as to secure complete justice. In doing so, due regard must be given to the overarching objective of sentencing in the criminal justice system, which is grounded on the sublime philosophy of maintenance of peace of the collective and that the rationale of placing an individual behind bars is aimed at his reformation.

19. We thus sumup and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences ‘compoundable’ within the statutory framework, the extra- ordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society;

(ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations.

20. Having appraised the aforestated parameters and weighing upon the peculiar facts and circumstances of the two

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Crl.A.No.247 of 2018

appeals before us, we are inclined to invoke powers under Article 142 and quash the criminal proceedings and consequently set aside the conviction in both the appeals. We say so for the reasons that: Firstly, the occurrence(s) involved in these appeals can be categorized as purely personal or having overtones of criminal proceedings of private nature; Secondly, the nature of injuries incurred, for which the Appellants have been convicted, do not appear to exhibit their mental depravity or commission of an offence of such a serious nature that quashing of which would override public interest; Thirdly, given the nature of the offence and injuries, it is immaterial that the trial against the Appellants had been concluded or their appeal(s) against conviction stand dismissed; Fourthly, the parties on their own volition, without any coercion or compulsion, willingly and voluntarily have buried their differences and wish to accord a quietus to their dispute(s); Fifthly, the occurrence(s) in both the cases took place way back in the years 2000 and 1995, respectively. There is nothing on record to evince that either before or after the purported compromise, any untoward incident transpired between the parties;

Sixthly, since the Appellants and the complainant(s) are residents of the same village(s) and/or work in close vicinity, the quashing of criminal proceedings will advance peace, harmony, and fellowship amongst the parties who have

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Crl.A.No.247 of 2018

decided to forget and forgive any illwill and have no vengeance against each other; and Seventhly, the cause of administration of criminal justice system would remain un- effected on acceptance of the amicable settlement between the parties and/or resultant acquittal of the Appellants; more so looking at their present age.

5. In view of the aforesaid, the judgment in Spl.CC.No.45 of 2015

dated 19.02.2018 passed by the learned Sessions (Fast Track Mahila) Judge,

Namakkal is set aside. The appellant/accused is acquitted of all charges in

Spl.CC.No.45 of 2015 dated 19.02.2018 passed by the learned Sessions (Fast

Track Mahila) Judge, Namakkal. Fine amount, if any paid, shall be refunded to

the appellant forthwith. Bail bonds, if any executed, shall stand cancelled.

6. It is made clear that if the appellant leaves the victim anytime in

lurch, the conviction and sentence imposed by the trial court shall stand

automatically restored and the respondent can secure the appellant to serve the

remaining period of sentence.

7. In the result, this Criminal Appeal stands allowed.

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