C482/665/2023
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                                     IA No.01 of 2023 (Compounding Application)
                                     In
                                     C482 No.665 of 2023
                                     Hon'ble Sharad Kumar Sharma, J.

Mr. Shailabh Pandey, Advocate, for the applicant.

Mr. Atul Kumar Shah, D.A.G. for the State of Uttarakhand.

Mr. Devesh Pande, Advocate, for the respondent.

The applicant is languishing in jail, and presently, he is being represented by his elder sister Ms. Aparna Tiwari. So far as the victim/respondent no.3 is concerned, who is a minor, is being represented by her mother/complainant, herein, Smt. Basanti Devi, who too, is present in person.

A proceedings by way of an FIR No.638 of 2021, dated 19.11.2021, was got registered by late husband of respondent no.2, Late Mr. Trilok Singh Bhandari, for the alleged involvement of the present applicant in commission of the offence under section 363 and 366 of IPC.

The set of allegations as levelled in the FIR was, that on 18.11.2021, when the victim was 16 years of age, and she had gone to school, she is said to have eloped with the present applicant, and as a consequence thereto, they have expressed, that in all probability he might have committed an offence under section 376 of IPC, but as such no FIR was registered for the said offence.

The matter was investigated and the chargesheet being Chargesheet No.02, dated 13.02.2023, was submitted, and it's at the stage of submission of the chargesheet, that the Investigating Officer has introduced the offences under sections 376 (2) (n) of IPC and section 5/6 of the POCSO Act. As a resultant thereto, he has been charged for the said offences under sections 363, 366 and 376 (2) (n) of IPC, and sections 5/6 of the POCSO Act.

It is not in dispute between the parties, that the victim, on the day when she had eloped with the applicant was a minor, and even as on today, when this C482 application is being considered on the compounding application, she is still is a minor of 17 years 5 months and 20 days of age.

But certain inevitable facts, which has been revealed are, that as a consequence of the submission of the chargesheet, when the proceedings of the Special Sessions Trial No.05 of 2023, "State Vs. Tarun Tiwari", stood instituted before the court of Additional District and Sessions Judge, Haldwani, District Nainital, the present applicant has been summoned for the aforesaid offences, and at present applicant is languishing in jail.

The offences for which the applicant has been summoned, most of the offences are not compoundable, and particularly, owing to the backdrop of the instant case, when admittedly the victim is a minor. But then, the bare reality of the facts cannot be ignored to be considered by this Court, that as a consequence of the incident as referred to in the FIR No.638 of 2021, dated 19.11.2021, and as jointly stated by the widow of the complainant respondent no.2, the victim herself, who is present in the court, Mrs. Aparna Tiwari, the elder sister of the applicant. All of them unanimously agree that, as of now, the applicant and the victim have got married, and as per the records placed before this Court they were married on 21.11.2021, and as a consequence of the matrimonial relationship which they had, a child has born on 07.08.2022.

This would be a peculiar situation in itself, which becomes inevitable for the courts exercising powers under section 482 of CrPC, to deal with such type of the situation, where a minor has voluntarily established a physical relationship, and as a consequence thereto, a child has born when the victim still continues to be minor and even the factum of the marriage cannot be reckoned in the eyes of law, because apart from the fact, that there is no acceptable evidence on record, coupled with the fact that this Court cannot legally recognize the marriage of 21.11.2021, because it would be a void marriage, which was solemnized with a minor on 21.11.2021.

But the courts will have to carve out an exception, where owing to the matrimony, a child was born and it is the basic interest and welfare of the child, which is now to be taken care of and in these special circumstances, the Hon'ble Apex Court has observed, that the cut-off date of 18 years of attaining the majority as mandated may not be exclusively taken as to be a common yardstick for dealing with such type of cases, where the victim is marginally minor and has voluntarily established the physical relationship.

The Hon'ble Apex Court has observed that the Court has to take a pragmatic view, and strict and a rigid formula of 18 years, has not to be invariably followed in each and every case irrespective of its circumstances, because that determination has to be made depending upon the facts and circumstances of the each case, which would be exclusive in this case because of the birth of the child.

Almost a similar view was taken by the coordinate Bench of the Rajasthan High Court Jodhpur, in S.B. Criminal Misc. (Pet.) No.6323 of 2022, "Tarun Vaishnav Vs. State of Rajasthan and another", where the coordinate Bench, while dealing with an aspect about the affect of the majority of minor girl, who enters into a consensual physical relationship, has laid down certain seven wider determining points, which are required to be considered as it has been referred in paragraph 18 of the said judgment, which are extracted hereunder:-

"18. This Court feels that it is a fit case to exercise its inherent powers under Section 482 of the Code for quashing the FIR to secure the ends of justice, because:-

(i) an adolescent girl of tender age (16 years) has fallen in love with a boy of 22 years;

(ii) both being immature, apparently driven by momentary emotions have fallen prey to lust, surpassing social, moral and legal limits;

(iii) the complainant is the police and the girl or her family are neither aggrieved party nor complainant;

(iv) the girl has been consistent in her stand that she consented to the physical relationship. Not only in her statements under Section 161 and Section 164 of the Code but also before this Court, the girl unequivocally accepted that she had consented to the act;

(v) their fornication though may be without legal and moral sanction, has resulted in child birth;

(vi) parents of both - the girl and the boy having forgiven their respective children for their felony, intend to tie them in nuptial knot, when the prosecutrix attains marriageable age;

(vii) if the prosecution continues, the petitioner is sure to face conviction, as the girl is minor. The conviction will result in 10 years of incarceration which would bring more agony and misery to the girl and her newly born son, rather than securing justice;

(viii) and also because, the basic ingredient of retributive theory of punishment - "avenge for the person wronged" is completely absent."

Owing to the aforesaid principles laid down by the coordinate Bench of Rajasthan High Court, the instant case too, would be falling within an ambit of exception to exercise of my inherent powers under section 482 of CrPC, to compound the offences, in order to secure the ends of the justice, particularly in the interest of the child. This judgment of the Rajasthan High Court was put to challenge in the SLP (Criminal) No.1890 of 2023, "State of Rajasthan Vs. Tarun Vaishnav and another", and the same has been affirmed with the dismissal of the SLP.

In view of the aforesaid, since the basic guiding principles laid down by the coordinate Bench of the Rajasthan High Court, would now be acting as a guiding factors to be considered by the court, in the exercise of its powers under section 482 of CrPC, but still this Court is of the view, that though the proceedings of the Special Sessions Trial No.05 of 2023, "State Vs. Tarun Tiwari", which is pending consideration before the court of Additional District and Sessions Judge, Haldwani, District Nainital, would hereby deserves to be quashed, and as a consequence thereto, the implications of sub-section (8) of section 320 of CrPC, would follow, and it would be treated as to be an acquittal of the present applicant, of his alleged involvement in commission of the offences, which has been complained of in the FIR No.638 of 2021, and consequently by the summoning order dated 16.02.2023.

As result of quashing of the proceedings of the sessions trial, and as a result thereto, the affect of sub-section (8) of section 320 of CrPC, the applicant is directed to be released forthwith, without any such conditions being imposed upon him.

But it is made clear, that the sessions trial will proceed against the present applicant, if he fails to undertake to the steps as observed hereunder, which has been undertaken to be taken by the applicant, on his behalf, by his elder sister Smt. Aparna Tiwari, and he would be in future estopped from taking a stand, that since the statement has been given by the elder sister, he is not bound by it. Immediately after the release, the applicant would ensure to get the marriage registered as soon as the minor victim/respondent no.3, attains majority, and place the said certificate on the records of the proceedings of the Special Sessions Trial No.05 of 2023, "State Vs. Tarun Tiwari", if the subsequent conditions are not complied with, the preceding part of this judgment of the compounding the offences, would not be given effect to.

Subject to the aforesaid, the C482 application stands disposed of.

(Sharad Kumar Sharma, J.) 08.08.2023 NR