Orissa High Court
Fayazuddin Khan@Badal Khan vs State Of Odisha & Others ....... ... on 4 March, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.3850 of 2024
(In the matter of an application under Section 528 of the Bharatiya
Nagarika Suraksha Sanhita, 2023 r/w Section 482 of the Code Of
Criminal Procedure, 1973 )
Fayazuddin Khan@Badal Khan ....... Petitioner
-Versus-
State of Odisha & Others ....... Opposite Parties
For the Petitioner : Mr. Amitav Tripathy, Advocate
For the Opposite Parties : Mr. Bibekananda Nayak,
Additional Government Advocate
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
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Date of Hearing:18.02.2025 : : Date of Judgment:04.03.2025
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S.S. Mishra, J. The petitioner has filed the present application
under Section 528 of the BNSS, 2023 r/w Section 482 of the
Cr.P.C., 1973, seeking quashing of the criminal proceedings
arising out of Nayagarh P.S. Case No. 60 of 2022, corresponding
to T.R. Case No. 135 of 2022, pending before the learned
Additional Sessions Judge-cum-Special Court under the POCSO
Act, Nayagarh.
2. The prosecution case originates from an FIR lodged by the
informant on 10.05.2022, alleging that on 09.05.2022, the
petitioner kidnapped her minor daughter (Opposite Party No.3)
and took away gold ornaments and cash of Rs.8,000/- from their
house.
3. Based on these allegations, Nayagarh P.S. Case No. 60 of
2022 was registered under Sections 363/366/376(2)(n) of the
Indian Penal Code, 1860 (IPC) read with Section 6 of the POCSO
Act. Upon completion of the investigation, a charge sheet was
filed, and the learned trial court took cognizance of the offences.
4. During the pendency of the trial, the petitioner and Opposite
Party No.3 entered into a marital relationship after the latter
attained the age of majority. They are now living together as
husband and wife, and the informant (Opposite Party No.2) has
expressed her willingness not to prosecute the matter further.
5. Mr. Tripathy, the learned counsel for the petitioner submits
that the entire case was based on a love affair between the
petitioner and Opposite Party No.3, which was opposed by their
families due to religious differences. Consequently, both the
petitioner and Opposite Party No.3 left their respective homes and
later solemnized their marriage.
6. It is further submitted that at the time of the alleged incident,
Opposite Party No.3 was a minor, and due to that, the police
rescued her and handed over to her parents. However, upon
attaining majority, she voluntarily married the petitioner, and they
are now living together happily.
7. Learned Counsel for the petitioner contends that
continuation of the criminal proceedings would serve no useful
purpose, as the alleged victim does not support the prosecution
case, and the matter has been amicably resolved between the
parties. Even all the family members of the Opposite Party No.3
after having agreed to the alliance, will not support prosecution
case.
8. It is also submitted that the informant (Opposite Party No.2)
has no objection to quash the proceedings and is ready to submit
an affidavit before this Court stating the same.
9. Mr. Nayak, the learned Additional Government Advocate
appearing for the State of Odisha opposes the prayer for quashing
on the ground that serious offences under Sections 376(2)(n) IPC
and Section 6 of the POCSO Act have been invoked against the
petitioner.
10. Relying on the judgment of the Hon'ble Supreme Court in
Ramji Lal Bairwa & Another v. State of Rajasthan & Others1,
Mr. Nayak has contended that cases involving offences under the
POCSO Act cannot be quashed merely on the basis of a
compromise between the parties, as offences are considered to be
the crimes against society at large and not just against an
individual victim. He further submits that indulgence by this Court
at this stage would cause defeat of the object of the POCSO Act.
11. Learned counsel for the State submits that even if the victim
and her family do not wish to proceed with the case, the gravity of
the offence and the legislative intent behind the POCSO Act
necessitate that the trial be conducted in accordance with law.
12. The applicability of the principle laid down in the recent
Judgment of the Hon'ble Apex Court in Ramji Lal Bairwa v. State
of Rajasthan (supra) vis-à-vis the present case needs to be delve
upon. The Hon'ble Supreme Court has held as under: -
"25. Thus, in unambiguous terms this Court held that
before exercising the power under Section 482, Cr. P.C.
the High Court must have due regard to the nature and
gravity of the crime besides observing and holding that
heinous and serious offences could not be quashed even
though a victim or victim's family and the offender had
settled the dispute. This Court held that such offences are
not private in nature and have a serious impact on the
society. Having understood the position of law on the
second question that it is the bounden duty of the court
2024 SCC OnLine SC 3193
concerned to consider whether the compromise is just
and fair besides being free from undue pressure we will
proceed to consider the matter further. A bare perusal of
the impugned order dated 04.02.2022 would reveal that
the High Court has erred in not bestowing proper
consideration the law laid down in Gian Singh's case
(supra) while rendering the same. The impugned order
would reveal that the allegations contained in the subject
FIR was not at all even adverted to, before quashing the
same. We have referred to the allegations which are of
serious nature revealed from the FIR. The complaint in
this case is annexed to the FIR produced in this
proceeding as Annexure P-1. In the said complaint which
led to the registration of the FIR reads thus:--
"Hence my report may be lodged and action may be
taken against the offender xxx as he is making pressure
on me not to lodge report."
32. In the decision relied on by the High Court to quash
the proceedings viz., Gian Singh's case (supra) and the
decision in Laxmi Narayan's case (supra) in
unambiguous terms this Court held that the power under
Section 482, Cr. P.C. could not be used to quash
proceedings based on compromise if it is in respect of
heinous offence which are not private in nature and have
a serious impact on the society. When an incident of the
aforesaid nature and gravity allegedly occurred in a
higher secondary school, that too from a teacher, it
cannot be simply described as an offence which is
purely private in nature and have no serious impact on
the society."
Apparently the facts of the present case are distinguishable from
those addressed in the cited case. In this instance, the victim and
the accused have entered into a marital relationship and are now
living a happy married life. This fundamentally alters the nature of
the dispute, as the parties have reconciled their differences and
moved forward with their lives. However in the case of Ramji Lal
(supra) a teacher has taken the sexual advantage from a minor girl.
Sexual exploitation and adolescent love affair by its nature is
distinguishable. Adolescent love is a conceptual romantic
relationship often lead to sexual encounter. However, there is no
element of coercion, force or manipulation to drag someone to
indulge in sexual activities for personal gratification. If the accused
is in a dominating position of power or trust, coerces, forces or
manipulates another into sexual activities for personal
gratification, financial gain or any other benefit that could only be
a case of exploitation. But same age group adolescents falling in
love, eloped and married shouldn't be criminalized. In such
circumstances, the principles laid down in the judgment by this
court in Rosalin Rout and Anr. V. State of Odisha and Anr.2
Case, which emphasizes the importance of personal reconciliation
and the potential to allow quashing of proceedings where the
relationship has been restored, should be considered. The facts
here do not involve heinous or grave offences that have a
significant societal impact rather the case remained in the personal
realm, and thus, it would be more appropriate to apply these
principles to the current matter, as the reconciliation reflects a
positive resolution. In addition, it can also be said that the
2024 SCC OnLine Ori 1339
compromise between the parties is in alignment with the
guidelines provided in the Rosalin Rout (supra) judgment.
13. The Rosalin Rout (supra) case underscores the importance
of ensuring that the compromise is genuine, voluntary, and free
from any undue pressure, while also taking into account the nature
of the offence, age of the accused and victim and the relationship
between the parties. In this case, the victim and accused have not
only reconciled but have entered into a marital relationship and are
living a harmonious life, which supports the notion that the
compromise is fair and in accordance with the principles laid out in
the Rosalin Rout (supra) judgment. This indicates that the
resolution between the parties is just and should be considered
favorably in the interest of justice. For ready reference guidelines
called out in the judgment of Rosalin Rout (supra) is quoted thus:-
"33. It is thus seen that the important and relevant
factors that weighed in the minds of different
Constitutional Courts relating to sexual offences
against the minor centered around the following
factors:
i) Age of victim & accused and/or age difference
between them.
ii) Nature of relationship between victim and the
accused including Trustee or fiduciary relationship.
iii) The nature, magnitude, and consequences of the
crime.
iv) Cases wherein the allegations reek of force,
depravity, perversity, or cruelty.
v) Consensual relationships ending in marriage.
vi) Consensual relationships that start with
assurance/expectation of marriage but do not
materialize in marriage due to family disapproval,
change in circumstances or other reasons.
vii) Parties are not interested to prosecute the cases
further and jointly approached the court for quashing
of proceedings.
viii) The possibility of conviction in the backdrop of
parties having come to an agreed terms and not willing
to prosecute the case further.
ix) The criminal prosecution will result in injustice to
the victims and its closure would only promote their
well-being.
x) The continuance of the criminal proceedings and the
participation of the victim in that proceedings would
adversely affect the mental, emotional, and educational
well-being of the victim and protracted trial may
possibly stigmatize the victim herself.
xi) The natural disposition and instinct of the victim
who has settled in her life with the accused husband to
protect her husband and her present and future
progenies in the best interest of the family.
xii) In the cases where trial is at advance stage and
evidence of the victim has already been recorded, High
Court should be circumspect while exercising plenary
jurisdiction under section 482 Cr.P.C The conditions
for exercising the jurisdiction under Section 482
Cr.P.C for quashing the criminal proceedings in such
cases cannot be exhaustively postulated, therefore,
every case has to be dealt with on its own facts in the
light of parameters enumerated hereinabove."
14. It's abundantly clear that in cases involving sexual
exploitation, there is no question of quashing the proceedings; as
such offences have serious implications for both the victim and
society. However, where an adolescent love has evolved into a
relationship that is now recognized and approved by societal
norms, as seen in this case, the situation differs significantly. The
fact that the victim and accused have entered into a marital
relationship and are living a happy and peaceful life reflects a
genuine reconciliation, which can be seen as a natural progression
in such circumstances. In such instances, where the relationship
has been matured to marriage and accepted by society, quashing
the proceedings is not only justifiable but may also be in the
interest of upholding the principles of reconciliation and personal
autonomy, as emphasized in the Rosalin Rout (supra) judgment. It
would be appropriate to reproduce paragraph 31 of the Judgment;
which reads as under:
"31. The POCSO Act was enacted with the ultimate
objective of prohibiting non-consensual and forced
sexual relationships with children, including child
sexual abuse and sexual harassment. While the
stringent provisions of the POCSO Act have
contributed positively to reducing instances of sexual
violence against children, they have also led to an
increase in vindictive litigation, with false cases being
filed against individuals under the act. However, it
was never the legislature's intention to prosecute
romantic relationships between young adults. The
doctrine of balancing needs to be pressed to service,
while evaluating the facts of each individual case and
exercising the jurisdiction under Section 482 Cr.P.C.
The High Court, under its inherent powers, can
interpret and harmonize these provisions to ensure
effective implementation of both statutes while
safeguarding the rights of the accused and the
victim."
Running a trial against the petitioner in this case would amount to
an abuse of the process of law, particularly given the fact that the
victim and the petitioner have entered into a marital relationship
and are living together in harmony. Sending the man to prison
would not only be unjust but would also work against the best
interests of the victim, as it could disrupt the peaceful life they
have built together. The continuation of legal proceedings under
these circumstances serves no legitimate purpose and would only
perpetuate unnecessary hardship to both the parties. In light of
their reconciliation and the societal approval of their relationship,
it would be more appropriate to quash the proceedings, allowing
them to move forward with their lives without the burden of legal
interference. Similar view has been echoed by Hon'ble Supreme
Court by orally observing in the recent case In Re: Right to
Privacy of Adolescents3 , wherein the court observed as under:
"This is one case [where] because of the fault of the
system, this man will get benefit. He will not get
benefit because he has done something good, but to
protect the victim and the child"
15. In light of the judgments cited and the discussions made
above, it becomes evident that the present case is distinguishable
from the typical instances where heinous or grave offences are
involved, as outlined in Ramji Lal Bairwa v. State of Rajasthan
(supra). The fact that the victim and accused have entered into a
marital relationship and are living a harmonious life significantly
alters the nature of the dispute. The principles laid down in the
Rosalin Rout (supra) case, which emphasizes the importance of
personal reconciliation, should apply here, especially considering
that the relationship between the parties has been restored and is
now recognized by societal norms.
The Rosalin Rout (supra) judgment underscores the need for the
court to evaluate each case individually, taking into account factors
like the nature of the offence, the willingness of the parties to
reconcile, and the impact of continuing legal proceedings on the
victim. In this case, where the parties have chosen to reconcile and
lead a married life together, continuing the trial or sending the
accused to prison would be an abuse of the process of law. It
would disrupt the well-being of both the victim and the accused
and serve no constructive purpose.
Additionally, the observations made in In Re: Right to Privacy of
Adolescents (supra) align with this view, emphasizing the need to
protect the victim's well-being and prevent further harm from
vindictive litigation. The doctrine of balancing the needs of justice
and the rights of the parties involved should be applied, and in this
case, quashing the proceedings is not only justifiable but would
also promote the interests of justice and societal harmony.
16. Therefore, in light of the reconciliation, the absence of a
serious societal impact, and the need to avoid unnecessary legal
hardship, it is appropriate to quash the proceedings, allowing both
parties to move forward with their lives without further legal
encumbrances. This approach ensures that justice is served in a
fair, compassionate, and practical manner, in line with the
established principles of law.
17. Therefore, the criminal proceeding in Nayagarh P.S. Case
No. 60 of 2022, corresponding to T.R. Case No. 135 of 2022,
pending before the learned Additional Sessions Judge-cum-Special
Court under the POCSO Act, Nayagarh and the consequential
proceedings arising therefrom qua the present petitioner are
quashed. Accordingly, the CRLMC is allowed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
The 4th day of March, 2025/ Subhasis Mohanty
Designation: Personal Assistant
Location: High Court of Orissa, Cuttack.
Date: 12-Mar-2025 17:06:01
