Tohid Ashraf vs State Of Uttarakhand And Another
2022 Latest Caselaw 3520 UK

       HIGH COURT OF UTTARAKHAND
              AT NAINITAL

  Criminal Misc. Application No. 2903 of 2019
                         (Under Section 482 of Cr.P.C.)

Tohid Ashraf                                              ...    Applicant
                                   Vs.
State of Uttarakhand         and Another                  ... Respondents

Advocate:    Mr. Zafar Siddique, Advocate, for the applicant.
             Mr. Pratiroop Pande, AGA, along with Ms. Lata Negi, Brief Holder, for
             the State
             Mr. Arvind Vashisth, Senior Advocate, assisted by Mr. Ajay Joshi,
             Advocate, for the complainant/respondent


Hon'ble Sharad Kumar Sharma, J.

The respondent No. 2 herein, had registered an FIR, being FIR No. 85 dated 8th April 2019, as against the present applicant, in the alleged involvement of the present applicant for commission of an offences under Sections 363 and 366 of IPC. As per the contentions made in the FIR, it was contended by the complainant that the minor daughter of the complainant respondent was kidnapped by the present applicant and as such, he should be tried for the aforesaid offence, which was complained of in the FIR. The matter was investigated upon and ultimately, on culmination of investigation, the Chargesheet, being Chargesheet No. 116 of 2019 dated 4th June 2019 has also been submitted, whereby the applicant has been charged with the offences under Sections 363, 366, 376 and Section 5/6 of the POCSO Act.

2. As a consequence of the submission of the Chargesheet dated 04.06.2019, a Special Sessions Trial No. 153 of 2019, State Vs. Tauhid Ashraf, has been registered before the Court of FTC/Additional Sessions Judge, Udham Singh Nagar; the same is presently pending consideration after the cognizance being taken on the same.

3. The basic set of allegation by the complainant in the FIR, as well as in the objection which was filed to the Compounding Application is that on the date of commission of offence, the victim was minor and any consent which was given by her for establishment of physical relationship, which has been extended, that cannot be taken as to be a free consent since then victim being minor, in order to oust the implications of Section 376 of IPC.

4. The age of victim on the date of the incident, which was complained of in the FIR, on the contrary, it has been submitted by the learned counsel for the applicant that on the basis of the Family Register, that the victim Rubina, in fact, on the date of commission of the alleged offence was major, as her recorded date of birth is shown to be 2nd October 2000. This fact is being vehemently opposed by the complainant Shakil Ahmed through his counsel, that no credence could be given to the said date of birth recorded in the family register, on account of the fact, that the School Living Certificate of the victim Rubina, has had to be taken into consideration, exclusively for the purposes of determining the age of the victim, at the time of commission of the offence and secondly, that the certificate, which has been placed, along with the present C482 Application by way of family register, has been obtained subsequently on 3rd June 2019, hence, much credence cannot be placed on the same.

5. On the contrary, it has been argued by the learned counsel for the applicant, that on the date of the incident, the victim was not minor, owing to the fact that apart from the Family Register, which has been relied with, which will

be a public document, since having being issued statutorily under the provisions of Panchayat Raj Act, and the date of birth recorded therein could be taken, as to be the actual date of birth of the victim.

6. He further submits, that its considering the majority of the victim, that the Division Bench of this Court, has granted an interim protection vide its judgement dated 14th June 2019, as rendered in Writ Petition (Criminal) No. 245 of 2019, which too is opposed by the complainant, on the ground, that some misstatements have been made in the writ petition, when the Division Bench, vide it judgement dated 14th June 2019, had granted protection to the applicant, as well as the victim.

7. Today, the matter is listed on the Compounding Application No. IA/4194/2022. In the Compounding Application, which has been thus submitted, it has been signed by the present applicant and the victim Rubina, wherein she has stated, that she has solemnized Nikah on 9th April 2018, according to her freewill and as a consequence of the aforesaid marriage, a male child was born out of the marriage in the year 2020, who is now about 2 years of age.

8. The applicant and the victim are present in person before this Court.

9. This Court, after having heard the learned counsel for the parties and being conscious of the fact of the objection which has been raised by the learned Senior Counsel for the complainant, who vehemently opposes the factum of wedlock dated 9th April 2019, but, this practical aspect

could be verified from the statement, which has been made by the victim before this Court, that she was major on the date of the incident and she has voluntarily solemnized the marriage with the present applicant, out of which the male child was born in 2020.

10. The said statement recorded by the victim is taken on record. Even the applicant had made a statement before this Court and has assured that the he would be provided full care and protection, to the victim all throughout her life and he would properly take care of her.

11. This Court is of the opinion, that though the technicalities of law may have some space to be considered under the peculiar circumstances of this case, but the practicality of life cannot be overruled. Practicality is in the sense, that if the victim has made a statement before this Court, which has exercised its inherent powers under Section 482 of CrPC, the said statement, which has been taken on record, where the factum of marriage having been voluntarily solemnized, is a fact disclosed before this Court is taken on record, and being conscious of the fact that now since the family is residing together along with small child, who was born in 2020, even if it all, in the war of litigation, the complainant succeeds, then too, nothing fruitful purpose would be retrieved by him, rather it would be creating havoc for the family, which is now residing peacefully together with a small child.

12. The said exception, in these peculiar circumstances was considered by the Hon'ble Punjab and Haryana High Court, in one of the judgments, which was considered by this Court also in a judgment reported in 2018 (2) UD

680, Pan Singh Rana Vs. State of Uttarakhand and others, where the Punjab and Haryana High Court, in a judgement reported in 2007 (4) CTC 769, Kulwinder Singh Vs. State of Punjab, has observed that the High Courts, in the exercise of its powers under Section 482 of CrPC, even in these peculiar circumstances, even if it is presumed that the victim was minor on the date of complained incident, but later on, if they have entered into a marriage, the Courts could exercise its powers of settling the dispute by the Compounding Application, because the principal sufferer of the incident complained of by respondent No. 2, is the victim and her child.

13. Since the victim has made a statement, that she is happily living with the applicant peacefully and since she has got no grievances, as such, as against the present applicant, this Court is of the view, that this is a fit case, in which this Court should exercise its inherent powers under Section 482 of CrPC, because if the proceedings of the present criminal case is even succeeded to be fastened upon the present applicant, it may ultimately turn into an act of futility with no fruitful consequences could be arrived at.

14. Thus, the C482 Application is allowed in terms of the Compounding Application. The proceedings of Special Sessions Trial No. 153 of 2019, State Vs. Tauhid Ashraf, which is presently pending consideration before the Court of FTC/Additional Sessions Judge, Udham Singh Nagar, would hereby stand dropped.

15. But, having dropped the aforesaid proceedings, it would be with a word of caution to the applicant, that he

would ensure to provide all care and protection to the victim, who is present in person before this Court and has supported the stand along with the applicant.

16. Subject to the aforesaid, the present C482 Application stands disposed of.

(Sharad Kumar Sharma, J.) 04.11.2022 Mahinder/