Allowed

Ashok S/O Dhondiba Kale v. the State of Maharashtra and Others

Bombay HC16 Jul 2018APPLN/7038/2016

Case brief

AI extract

What is this about?

The High Court granted quashment of an FIR and criminal proceedings under Sections 363, 366A, 376 IPC and POCSO. Relying on Section 482 CrPC and the fact of a consummated marriage where the victim was over 15 years at the time of the alleged offence, the court held that quashing was in the interest of justice.

What did the court decide?

Quashed and set aside the FIR bearing C.R. No. 117/2013 and the proceedings in Special Sessions Case No. 13/2014.

Ashok S/O Dhondiba Kale Vs the State of Maharashtra and Others — Cheque Dishonour | Bombay HC (2018)

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1 Cri Appln 7038 OF 2016

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 7038 OF 2016

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Ashok Dhondiba Kale,
Age : 22 Years, Occu. Private
Service,
R/o Digras, Barsale, Tq. Sailu,
Dist. Parbhani, presently residing at
Near Hotel Seven Hawel,
Pathardi Phata, Tq. & Dist. Nashik....Applicant.
 Versus

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1] State of Maharashtra
 Through the Investigation Officer,
 Police Station Sailu,
 Tq. Sailu, Dist. Parbhani.
2] Santaji s/o Dhondiba Khupse,
 Age : 49 years, Occu. Service,
 R/o Vidyanagar, Sailu,
 Tq. Sailu, Dist. Parbhani.
3] Rohini d/o Santaji Khupse @
 Rohini w/o Ashok Kale,
 Age : 18 years, Occu. Housewife,
 R/o Digras-Barsale, Tq. Sailu,
 Dist. Parbhani, presently residing
 at Near Hotel Seven Hawel,
 Pathardi Phata, Tq. & Dist.
 Nashik.

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...Respondents.

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2 Cri Appln 7038 OF 2016

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Mr. M. P. Tripathi, Advocate for Applicant.
Mr. S. D. Ghayal, Addl. Public Prosecutor, for
Respondent / State.

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Mr. P. B. Gapat, Advocate for Respondent No. 2.
Mr. N. S. Kadam, Advocate for Respondent No. 3.

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CORAM : PRASANNA B. VARALE &

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 SMT.VIBHA KANKANWADI. JJ.

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RESERVED ON : 09-04-2018.

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PRONOUNCED ON : 16-07-2018.

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JUDGMENT : [Per Smt. Vibha Kankanwadi, J]

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01.By this criminal application under Section
482 of Criminal Procedure Code, the petitioner is
seeking quashment of the first information report and
the proceedings in Special Sessions Case No. 32 of
2014 pending before Sessions Court, Parbhani.

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02.The respondent No. 2 is a resident of Sailu.
Respondent No. 3 is his daughter. Respondent No. 2
had lodged report with Sailu Police Station, Tq.
Sailu, Dist. Parbhani regarding missing of the
respondent No. 3 on 4.7.2013. It was contended in

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the said report that the daughter is missing since 9

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AM of 3.7.2013. The daughter had left the house

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under the pretext to go to school. However, did not

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3 Cri Appln 7038 OF 2016

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return. Thereafter, the informant respondent No. 2
had gone to Pune on 8.8.2013 and he received the
information that the present applicant accused had
taken respondent No. 3 at Pune. Respondent No. 2 had
talked with the applicant on mobile. But, thereafter
the informant lodged the report saying that the
applicant has taken away his minor daughter on the
false assurance of marriage. The said report came to
be registered as CR No. 117/2013 for the offences
punishable under Sections 363, 366A of Indian Penal
Code during the course of investigation, the accused
was arrested on 19.9.2014 and the charge-sheet came

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to be filed for the under Sections 363, 366-A, 376 of
Indian Penal Code and Section 6 of Protection of
Children from Sexual Offences Act, 2012. In the
statement before the Investigating Officer, the
daughter had stated that she had developed love for
the accused and out of said love and affection she

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left her house and guardianship of her father on
3.7.2013 and joined the applicant at Parbhani.
Thereafter they went to Pune from Parbhani. Accused

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and the daughter performed marriage on 25.7.2013 in
Ganpati Mandir, Alandi, Dist. Pune and thereafter

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4 Cri Appln 7038 OF 2016

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there was sexual relationship between the accused and
her. At the time of her statement she was pregnant.
The applicant further says that when bail application

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was filed by the accused, at that time, the
respondent No. 2 and 3 had appeared and given consent
to the release of applicant. It was reiterated that
the accused and the daughter had solemnized marriage.
Thereafter the bail was granted. In spite of that
the charge-sheet was filed. Thereafter the
respondent No. 3 has delivered a female child from
the said wedlock. In view of exception to Section
375 of Indian Penal Code offence punishable under
Section 376 is not maintainable. Further invoking
of POCSO which is newly enacted it does not include
“wife below 18 years” under the definition of
“child”. Other offences are also not made out and
therefore, the applicant has prayed that the first
information report in the said matter to quash and
set aside so also the entire proceedings.

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03.Respondent No. 2 and 3 have filed their

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affidavits. They both have reiterated the fact that
there was marriage between the applicant and

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5 Cri Appln 7038 OF 2016

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respondent No. 3, child has been delivered by
respondent No. 3 on 2.12.2014. The applicant accused

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is taking care and maintaining mother and the child
satisfactorily and therefore, the respondent No. 2
has stated that he has no grievance against the
petitioner.

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04.Rejoinder has been filed by the applicant
stating that respondent No. 3 has initially taken
education in one Savitribai Badrinarayan Nutan
Prathamik School, Sailu and as per the school report
her birth date is 2.1.1998. She was more than 15
years and 7 months on the day of alleged offence and
therefore, the proviso to Section 375 of Indian Penal
Code is applicable.

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05. Heard learned Advocate Mr. M. P. Tripathi
for applicant, learned Addl. Public Prosecutor Mr. S.
D. Ghayal for State and Mr. P. B. Gapat and Mr. N. S.

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Kadam Advocates for respondent No. 2 and 3. In order
to cut short we would like to say that it has been
submitted on behalf of the applicant and the
respondent No. 2 and 3 that though the first

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6 Cri Appln 7038 OF 2016

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information report was lodge and at that time
respondent No. 3 was minor; but, taking into
consideration the fact that though she had left the
house it was the voluntary act. Thereafter marriage

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was performed between the applicant and the
respondent No. 3 and thereafter they had sexual
relationship. Therefore, proviso to Section 375 of
Indian Penal Code is applicable. Reliance has been

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placed on the decision in Independent Thought V/s

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Union of India and Anr., (AIR 2017 Supreme Court

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4904) wherein it has been observed that though the
said proviso is struck down as arbitrary, capricious,
whimsical and violative of rights of girl child; the
effect of the said Judgment is prospective. The
Judgment was pronounced on 11.10.2017. In this case
though observation is made that the cases may be
governed under POCSO as it is a special enactment.

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However, the word 'child' defined under POCSO does
not cover a minor wife. Further reliance has been

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placed on decision of this Court on principle laid

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down in Writ Petition No. 4168/2013 decided on 16th

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April 2015. Wherein the similar circumstances the

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7 Cri Appln 7038 OF 2016

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petition came to be allowed in the light of
guidelines of Narinder Singh V/s State of Punjab
(2014 AIR SCW 2065). Further reliance has been
placed on State of Karnataka V/s L. Muniswamy, (1977

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AIR (SC) 1489), wherein it has been held that
Sessions Court has power to discharge the accused if
there is no sufficient grounds for proceedings
against the accused. Further reliance has been
placed on B. S. Joshi V/s State of Haryana, (2003 AIR
(SC) 1386), wherein it has been held that :

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“While exercising inherent power of quashing

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under Section 482, it is for the High Court to take into consideration any special features which appear

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in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the Court, chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash

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8 Cri Appln 7038 OF 2016

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the proceedings. The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes. High Court is exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code” .

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It is submitted that since the accused and respondent

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No. 3 are married and they are living a happy
married life, they have a daughter, it would be in
the interest of justice to quash the proceedings.

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06. The learned Addl. Public Prosecutor

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vehemently submitted that the offences punishable
under Section 376 and under POCSO Act are very much
serious and heinous in nature. Merely because the
accused has married the victim that does not absolve
him from punishment.

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07. Respondent No. 2 and 3 were personally
present before us. We have confirmed from respondent

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9 Cri Appln 7038 OF 2016

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No. 3 about the contents of her affidavit. She has
stated that the said affidavit was filed by her with
her free will. In fact she had brought her daughter
to the Court also. She has specifically stated that
the accused is looking after her properly. She
herself had left the home because she was deeply in
love with the accused. The respondent No. 2 has also
given his no objection for quashing the criminal
proceedings against the applicant.

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08. There can not be a difference of opinion

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regarding the fact that the offence under Section 376
of Indian Penal Code and under the POCSO Act are
serous in nature and heinous. They are the offences
against society and when such offences are against
society they can not be quashed by consent. Merely
because the accused has married the victim that will
not also, in general, absolve him from criminal
liability. However, we are also required to consider
the facts in the present case in order to appreciate
the submissions. It is to be noted that even the
victim has stated that the accused has firstly
performed marriage with her and thereafter, they were

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10 Cri Appln 7038 OF 2016

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living as legally wedded husband and wife. Sexual
relations took place only after the marriage was
performed. That means at time of the sexual
intercourse, the accused was 'the husband' of
respondent NO. 3. In view of the decision in
Independent Thought V/s Union of India and Anr.,

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(Supra) though the exception to Section 375 of Indian
Penal Code has been struck down by Judgment dated

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11.10.2017, it has been clarified in the said
Judgment itself that the Judgment will have
prospective effect. The F. I. R. will show that at
the time of lodging the same the age of the victim

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has been shown as 15 years. Her birth date was not
mentioned in the report which was filed regarding
missing. As well as the F. I. R. in crime No.

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117/2013 statement of victim was recorded on

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19.9.2014 and at that time she has given her age as
16 years. As regards the evidence about her age is
concerned, bonafide certificate from Smt. L. L. R.

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Nutan (Kanya) Prashala Sailu has been produced which

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shows that as per that record her birth date is
27.10.1998. It is stated that she had taken

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admission in the said school on 20.6.2010 in 7th

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11 Cri Appln 7038 OF 2016

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standard. Her earlier school was Vivekanand
Prathamik Shala, Sailu. Along with rejoinder

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affidavit of bonafide certificate issued by
Savitribai Badrinarayan Nutan Prathamik School, Sailu
has been produced which shows that she had taken
admission in that school on 1.7.2013 in second
standard and as per this record her birth date is
2.1.1998. Taking into consideration, the bonafide

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certificate which is issued earlier in time, is
required to be considered and therefore, it can be
said that at that time of alleged commission of

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offence the victim was more than 15 years and 7
months old. The full Bench of Delhi High Court in

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the case of Court on its own Motion (Lajja Devi) &

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Ors. V/s State & Ors., (2012 (131) DRJ 225 (FB) has
come to the conclusion that the consummation of
marriage with wife below age of 15 years is an
offence. In view of Section 375 and therefore, under
the provisions of Section 376 of Indian Penal Code
FIR in such cases can not be quashed. This ratio

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will not be applicable here. As aforesaid the
respondent No. 3 victim was more than 15 years and 7
months of age. Therefore, definitely applicant is

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12 Cri Appln 7038 OF 2016

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entitled to get benefit of the old provision i.e.
Exception to Section 375 of Indian Penal Code. It
will not be out of place to mention the observation

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in Independent Thought V/s Union of India and Anr.,
(Supra) wherein it is observed in para No. 187 that :

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“ Section 42A of POCSO has two parts. The first part of the Section provides that the Act is in addition to and not in derogation of any other law. Therefore, the provisions of POCSO are in addiion to and not above any other law. However, the second part of Section 42A provides that in case of any inconsistency between the provisions of POCSO and any other law, then it is the provisions of POCSO, which

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will have an overriding effect to the extent of inconsistency. POCSO defines a child to be a person below the age of 18 years. Penetrative sexual assault and aggravated penetrative sexual assault have been defined in Section 3 and Section 5 of

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POCSO. Provisions of Sections 3 and 5 are by and

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large similar to Section 375 and Section 376 of IPC. Section 3 of the POCSO is identical to the opening portion of Section 375 of IPC whereas Section 5 of

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13 Cri Appln 7038 OF 2016

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POCSO is similar to Section 376(2) of the IPC. Exception 2 to Section 375 of IPC, which makes sexual intercourse or acts of consensual sex of a man with his own “wife” not being under 15 years of age, not an offence, is not found in any provision of POCSO. Therefore, this is a major inconsistency between POCSO and IPC. As provided in Section 42A, in case of such an inconsistency, POCSO will prevail. Moreover, POCSO is a special Act, dealing with the children whereas IPC is the general criminal law. Therefore, POCSO will prevail over IPC and Exception 2 insofar as it relates to children, is inconsistent with POCSO” .

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Though above said fact is required to be
considered, yet in this case, the marriage is
performed and they are staying together. They are
happily married.

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09. As regards Section 363, 366A of Indian
Penal Code is also considered the above said fact
about the marriage between the accused and the victim
is required to be considered. In almost similar case

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14 Cri Appln 7038 OF 2016

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in Writ Petition No. 4168/2013 it was observed that :

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“ In the instant case, the FIR reveals that the Petitioner and Respondent No. 2 were in love with each other and physical relationship between them was consensual. However, at the relevant time Respondent No. 2 was minor. After she attained

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majority, she got married to the Petitioner. Now, they are living together. Under such circumstances, if prosecution is allowed to be continued against the Petitioner it will bring discord in their matrimonial relationship and they will be unnecessarily required to face the consequences of prosecution, which is not at all likely to end into conviction. Consequently, no fruitful purpose will be served by continuing with the prosecution of the Petitioner” .

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10. These observations are equally applicable
here. Applicant and respondent No. 3 are happily
married.Takingintoconsideration,said

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circumstances and in the light of principles laid
down by the Apex Court in the decision of Narinder
Singh V/s State of Punjab there is no impediment in

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15 Cri Appln 7038 OF 2016

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quashing the F.I.R. and the criminal proceedings. The

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powers of this Court under Sec. 482 of Code of
Criminal Procedure is required to be used in the
interest of justice in order to avoid the abuse of
process of law. Possibility of witnesses turning
hostile during the trial can not be ruled out. Case
is made out for quashing the entire proceeding before
learned Sessions Judge.

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Hence, following Order;

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ORDER

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(i) Criminal application is hereby

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allowed.

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(ii) The F. I. R. Report bearing C. R.

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No. 117/2013 registered at the

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behest of respondent No. 2 at

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Police Station, Sailu, Tq. Sailu,

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Dist. Parbhani and the proceedings

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before Sessions Judge, Parbhani,

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Special Sessions Case No. 13/2014

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for the offences punishable under

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Sections 363, 366A and 376 of
Indian Penal Code and Section 6 of
POCSO, 2012 are hereby quashed and
set aside.

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 [SMT. VIBHA KANKANWADI] [PRASANNA B. VARALE]
 JUDGE JUDGE

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ggd/-.

Ashok S/O Dhondiba Kale v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Ashok S/O Dhondiba Kale v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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