Quashed

Tarjan and Another v. State of Hp and Another

Himachal Pradesh HC8 Aug 2024CRMMO/404/2024

Case brief

AI extract

What is this about?

The High Court quashed an FIR under Sections 363, 366A, 376 IPC and Section 4 of POCSO Act. The victim, who was a minor at the time of elopement, had attained majority and voluntarily married the accused. The Court exercised inherent powers under Section 482 Cr.P.C., holding that continuing the trial would cause grave prejudice to the victim and her children.

What did the court decide?

FIR No. 23 of 2017 and consequent proceedings quashed; petitioner acquitted.

Tarjan and Another Vs State of Hp and… — Child Sexual Offences (POCSO) | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MMO No. 404 of 2024 Date of Decision: 8.8.2024

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_____________________________________________________________________ Tarjan and Anr. ……...Petitio Versus
State of Himachal Pradesh and Anr.

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Versus	……...Petitioners
	…....Respondents

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Coram

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Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? Yes. For the Petitioners: Mr. Prajjwal Gupta, Advocate.

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For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General with Mr. Ravi Chauhan, Deputy Advocate General.

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Sandeep Sharma, J. (Oral)

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By way of instant petition, prayer has been made by the petitioners for quashing of FIR No.23 of 2017, dated 4.8.2017, under Sections 363, 366A and 376 of IPC and Section 4 of POCSO Act, registered with Police Station Baddi, District Solan, Himachal Pradesh as well as consequent proceedings, if any, pending before the court below.

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2. Precisely, the facts of the case as emerge from the record are that FIR sought to be quashed in the instant proceedings, came to be lodged at the behest of respondent No.2 Kiran Mishra, who alleged that her

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minor daughter i.e. petitioner No.2 has eloped with some unknown person. She alleged that on 27.6.2017, she alongwith her husband and three children had gone to sleep after having dinner, but when she woke up the next morning, she found her daughter i.e. petitioner No.2, missing. On the basis of aforesaid complaint submitted by the complainant, police started investigation. On 14.9.2017, police recovered the victim-prosecutrix from the place called Ballia, Uttar Pradesh. After having procured transit remand from the Judicial Magistrate Ballia, police brought the petitioner No.1-accused and victim-prosecutrix i.e. petitioner No.2 at Police Station Baddi, District Shimla, Himachal Pradesh.

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3. After recording her statement under Section 161 CrPC, police also got the statement of victim-prosecutrix recorded Section 164 CrPC, wherein she deposed that she of her own volition and without there being any external pressure joined the company of the petitioner namely Tarjan, with whom she has already solemnized marriage. Since at the time of commission of the offence, victim-prosecutrix was minor, FIR sought to be quashed came to be instituted against the petitioner-accused. Though after completion of investigation, police has presented challan in the competent court of law, but before same could be taken to its logical end, petitioner-accused as well as petitioner-victim have approached this Court

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in the instant proceedings for quashing of FIR as well as consequent proceedings pending in the competent court of law, on the ground that false case was registered by respondent No.2, who happens to be step mother of petitioner No.2. It has been further stated in the petition that since accused as well as victim-prosecutrix have solemnized marriage and at present, they are living happily, prayer made on their behalf for quashing of FIR may be accepted.

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4. Pursuant to notices issued in the instant proceedings, respondent-State has filed status report, wherein facts as have been noticed herein above, have not been disputed, rather stand admitted, however, prayer made by the petitioners for quashing of FIR has been opposed on the ground that at the time of commission of the offence as well as solemnization of marriage of victim with petitioner-accused, she was minor and as such, consent, if any, of her is immaterial. Though pursuant to notice issued in terms of order dated 26.6.2024, respondent-complainant Ms. Kiran Mishra, stands served, but she has chosen not to come present and as such, this Court has no option but to decide the petition on the basis of material available on record.

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5. Before considering the prayer made in the instant petition, this Court deems it necessary to discuss/elaborate the scope and competence of

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this Court to quash the criminal proceedings while exercising power under Section 482 of Cr.PC.

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6. Hon’ble Apex Court in judgment titled State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 has laid down several principles, which govern the exercise of jurisdiction of High Court under Section 482 Cr.P.C. Before pronouncement of aforesaid judgment rendered by the Hon’ble Apex Court, a three-Judge Bench of Hon’ble Court in State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699 , held that the High Court is entitled to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. Relevant para is being reproduced herein below:-

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“7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the

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proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the 55 inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.”

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7. Subsequently, Hon’ble Apex Court in Bhajan Lal ( supra), has elaborately considered the scope and ambit of Section 482 Cr.P.C. Subsequently, Hon’ble Apex Court in Vineet Kumar and Ors. v. State of U.P. and Anr. , while considering the scope of interference under Sections 397 Cr.PC and 482 Cr.PC, by the High Courts, has held that High Court is entitled to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. The Hon’ble Apex Court has further held that the saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose i.e. a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In the aforesaid case, the Hon’ble Apex Court taking note of seven categories, where power can be exercised under Section 482 Cr.PC, as enumerated in Bhajan Lal

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(supra), i.e. where a criminal proceeding is manifestly attended with malafides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, quashed the proceedings.

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8. Hon’ble Apex Court in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293 , while drawing strength from its earlier judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330 , has reiterated that High Court has inherent power under Section 482 Cr.PC., to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charge, but such power must always be used with caution, care and circumspection. While invoking its inherent jurisdiction under Section 482 of the Cr.P.C., the High Court has to be fully satisfied that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts and the material adduced on record itself overrules the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial

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conscience of the High Court would persuade it to exercise its power under Section 482 Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. In the aforesaid judgment titled Prashant Bharti v. State (NCT of Delhi), (2013)

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9 SCC 293, the Hon’ble Apex Court has held as under:-

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“22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Cr.P.C.”) has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor wherein this Court inter alia held as under: (2013) 3 SCC 330, paras 29-30)

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The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the

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material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

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30.1 Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

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30.2 Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

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30.3 Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

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30.4 Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

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30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal - proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.”

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9. Hon'ble Apex Court in Asmathunnisa v. State of A.P. (2011)

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11 SCC 259 , has held as under:

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“12. This Court, in a number of cases, has laid down the scope and ambit of the High Court's power under section 482 of the Code of Criminal Procedure. Inherent power under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified 9 by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.

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The law has been crystallized more than half a century ago in the case of R.P. Kapur v. State of Punjab AIR 1960 SC 866 wherein this Court has summarized some categories of cases where inherent power can and should be exercised to quash the proceedings. This Court summarized the following three broad categories where the High Court would be justified in exercise of its powers under section 482:

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(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

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(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

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(iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."

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14.In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, according to the court, the process against the accused can be quashed or set aside :

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"(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

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(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no 10 prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

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(3) where the d iscretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on

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no evidence or on materials which are wholly irrelevant or inadmissible; and

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(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like".

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This court in State of Karnataka v. L. Muniswamy & Others (1977) 2 SCC 699, observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice requires that the proceedings ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the Legislature. This case has been followed in a large number of subsequent cases of this court and other courts.”

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10. Hon'ble Apex Court in Asmathunnisa (supra) has categorically

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held that where discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the

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like, High Court would be justified in exercise of its powers under S. 482 CrPC.

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11. From the bare perusal of aforesaid exposition of law, it is quite apparent that while exercising its inherent power under Section 482 Cr.PC., High Court can proceed to quash the proceedings, if it comes to the conclusion that allowing the proceedings to continue would be an abuse of process of the law.

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12. No doubt, at the time of the alleged commission of offence, victim-prosecutrix was minor and as such, consent, if any of her is of no consequence, however, after having perused statement of victimprosecutrix recorded under Section 164 CrPC as well as averments contained in the petition at hand, which is duly supported by the affidavit of victim-prosecutrix, this court finds that at no point of time, petitioner herein had ever compelled the victim-prosecutrix to join his company, rather she with a view to solemnize marriage, of her own volition, joined his company. In her statement recorded under Section 164 CrPC, victimprosecutrix categorically deposed before the Judicial Magistrate that she has already solemnized marriage with petitioner-accused, which fact was further substantiated with the statement of victim-prosecutrix recorded on oath in this Court on 26.6.2024, on which date, both petitioner-accused as

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well as victim-prosecutrix had come present. She categorically deposed before this Court that she had joined company of petitioner No.1 on 27.6.2017 and thereafter solemnized marriage and out of their wedlock, three children have also been born. She also deposed before this Court that though at the time of lodging of FIR, she was major, but yet her mother, who was against her marriage with the petitioner-accused, wrongly deposed before the court that she was 16 years old. She deposed that she is living happy married life with her husband and shall have no objection in case, FIR sought to be quashed in the instant proceedings is quashed and petitioner is acquitted of charges framed against him.

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13. Though after having taken note of the aforesaid statement made on oath, coupled with the fact that victim-prosecutrix was already major and has already given birth to three children, nothing much was left for this court to inquire into the matter further, but yet with a view to provide an opportunity to the respondent-complainant, this Court vide order dated 26.6.2024, issued notice to respondent No.2, especially calling upon her to come present on the next date of hearing. However, as has been taken note herein above, aforesaid respondent, despite sufficient opportunity, has chosen not to come present, meaning thereby, she has nothing to say in the matter.

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14. There is another aspect of the matter that victim-prosecutrix has already deposed in the learned trial court, wherein she has denied case of the prosecution in toto , which fact has been fairly acknowledged by Mr. Rajan Kahol, learned Additional Advocate General. After having perused the statements of victim-prosecutrix recorded before this Court as well as learned trial court, learned Additional Advocate General states that though petitioner No.1 is accused of a heinous crime punishable under Section 376 of IPC, but since he has already solemnized marriage with victimprosecutrix and victim-prosecutrix has already given birth to three children, no fruitful purpose would be served in case FIR as well as consequent proceedings sought to be quashed are allowed to sustain. He further states that on account of statements made by victim-prosecutrix before this Court as well as learned trial court, chances of conviction of the petitioner-accused are very remote and bleak and this Court may proceed to accept the prayer made by the petitioners for quashing of FIR as well as consequent proceedings arising therefrom.

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15. In the peculiar facts and circumstances, where petitioneraccused and victim have solemnized marriage, this Court, in the interest of the victim-prosecutrix, deems it fit to exercise power under Section 482 Cr.P.C, for accepting the prayer made in the instant petition. In case,

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prayer made on behalf of the petitioner-accused is not accepted at this stage, grave prejudice would be caused to victim, who has solemnized marriage with petitioner-accused and three children have also been born out of their wedlock. In case, petitioner-accused is made to face the trial in terms of FIR sought to be quashed and ultimately, he is convicted, it is petitioner No.2 and her children, who would be the ultimate sufferers. No doubt, while exercising power under Section 482 Cr.P.C, for quashing of FIR, this Court is also required to take into consideration interest of the society at large, but in the present case, interest of petitioner No.2 appears to be more important than that of the society and as such, in the peculiar facts and circumstances of the case, this Court while exercising powers under section 482 Cr.P.C, deems it fit to quash the FIR lodged against the petitioner-accused under the afore provisions of law.

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16. Since in view of the discussion made herein above, case of the prosecution is likely to fail in any eventuality, this Court finds the case at hand to be fit for exercising power under Section 482 CrPC to quash FIR as well as consequent proceedings. Trial, if any, pursuant to aforesaid FIR, if permitted to continue, would unnecessarily subject the petitioner-accused to ordeal of the protracted trial, which is bound to culminate in his acquittal.

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17. Consequently, in view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court (supra), present petition is allowed and FIR No.23 of 2017, dated 4.8.2017, under Sections 363, 366A and 376 of IPC and Section 4 of POCSO Act, registered with Police Station Baddi, District Solan, Himachal Pradesh as well as consequent proceedings, are quashed and set aside. Petitioner-accused is acquitted of the charges framed against him. The petition stands disposed of in the aforesaid terms, alongwith all pending applications.

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August 8, 2024 (manjit)

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(Sandeep Sharma), Judge

Tarjan and Another v. State of Hp and Another

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Tarjan and Another v. State of Hp and Another

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