Dismissed

Ashok Kumar v. the State of Jharkhand

Jharkhand HC12 Feb 2024Cr.M.P./181/2024

Case brief

AI extract

What is this about?

Petition to quash cognizance for rape and POCSO offences against a former police officer based on a compromise with the now-adult victim and her retracted statements. The High Court held that rape involving a minor cannot be quashed on compromise and dismissed the petition.

What the court decided

AI extract

Ashok Kumar Vs the State of Jharkhand — Child Sexual Offences (POCSO) | Jharkhand HC (2024)

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Cr. M.P. No.181 of 2024

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.181 of 2024

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Ashok Kumar @ Ashok Prasad, aged about 56 years, son of late Dhora Prasad, resident of village Baridih Bhushan Colony, Zone No.8, P.O. Agrico, P.S. Sidhgora, District- East Singhbhum, Jharkhand. … Petitioner

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Versus

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… The State of Jharkhand Opposite Party

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For the Petitioner : Mr. Jitendra Nath Upadhyay, Advocate For the State : Ms. Shweta Singh, Addl. P.P. For the Informant : Mr. Sheo Kr. Singh, Advocate ------

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 05.12.2019 passed by the learned Special Judge, (POCSO), Jamshedpur in connection with Sonari P.S. Case No.142 of 2019 corresponding to Spl. POCSO Case No.83 of 2019 by which the learned Special Judge, (POCSO), Jamshedpur has taken cognizance for the offence punishable under Sections 376 (2) (n) and 376 (c) of the Indian Penal Code as well as Section 6 of the POCSO Act against the petitioner and also the orders dated 19.10.2020, 31.05.2022 and 30.08.2022 whereby and where under nonbailable warrant of arrest has been issued against the petitioner in connection with the said case.

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The allegation against the petitioner is that when the informant was aged about 14-15 years, both her mother and father were in jail in connection with a

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Cr. M.P. No.181 of 2024

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criminal case. At that time, the petitioner established physical relationship with her against her wish as the informant was alone and there was no one to listen and support her. The petitioner used to establish physical relationship with the informant and also prepared a video and thereafter using his position as a police officer, terrorized the informant by threatening to send her to jail also and the petitioner used to continuously having physical relationship with the informant. On one occasion, the petitioner took the minor victim girl-informant to his house and went out to bring food for her from a hotel and in the meanwhile the son of the petitioner namely Amit also established physical relationship with the minor victim girl. The informant went to police station but the police did not register her case. A constable threatened the informant, hence, the informant could not lodged the First Information Report in the police station; immediately after the occurrence. The petitioner and his son Amit continued to establish physical relationship with the victim even after her marriage when she was coming to her paternal house.

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On the basis of written report submitted by the informant, police registered the case for the offences punishable under Sections 376 (2) (n) and 376 (c) of the Indian Penal Code and Section 6 of the POCSO Act. After investigation of the case, police submitted Final Report for lack of evidence. The learned Special Judge (POCSO), Jamshedpur vide its order dated 05.12.2019 in Sonari P.S. Case No.142 of 2019, basing upon the materials available in the record found prima facie case for the offences punishable under Sections 376 (2) (n) and 376 (c) of the Indian Penal Code and Section 6 of the POCSO Act against the petitioner but accepted the Final Report against the two accused persons due to lack of evidence in their favour.

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Cr. M.P. No.181 of 2024

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Learned counsel for the petitioner and the learned counsel for the informant jointly draw the attention of this Court towards I.A. No.987 of 2024 which is supported by the separate affidavits of the victim girl- who was a minor at the time of the first alleged occurrence and the petitioner and submit that therein it has been mentioned that the petitioner and the informant, with the intervention of well-wishers, common friends and relatives, have compromised the case out of the court and both the parties have entered into a compromise for which an agreement dated 11.01.2024 has been entered into between them. It is submitted by the learned counsel for the petitioner that the informant/opposite party No.2 is living in her matrimonial house and she has one child and she has no grievance against the petitioner. It is further submitted that since both the parties have compromised the case by entering into a joint compromise, hence, the informant does not want to proceed with the case.

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In support of his contention, learned counsel for the petitioner relies upon the judgment of a co-ordinate Bench of this Court in the case of Anand Sagar vs. The State of Jharkhand & Another passed in Cr.M.P. No.450 of 2021 dated 01.02.2023 wherein in the facts of that case where the offence punishable under Section 376 of the Indian Penal Code was not made out, the co-ordinate Bench of this Court quashed the entire criminal proceedings.

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Learned counsel for the petitioner also relies upon the judgment of this Court in the case of Dharmendra Ram vs. The State of Jharkhand & Another passed in Cr.M.P. No.4758 of 2022 dated 18^th April, 2023 wherein the offences involved were the offences punishable under Sections 452, 354, 354A and 506 of the Indian Penal Code as well as Section 8/12 of the POCSO Act and in the facts of that case, this Court quashed the entire criminal proceedings.

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Cr. M.P. No.181 of 2024

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Learned counsel for the petitioner also relies upon the judgment of the Hon’ble Supreme Court of India in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur & Others vs. State of Gujarat & Another reported in (2017) 9 SCC 641 wherein the offences involved were under Sections 384, 467, 468, 471, 120-B and 506 (2) of the Indian Penal Code and upon compromise between the parties, the Hon’ble Supreme Court of India quashed the entire criminal proceedings.

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Learned counsel for the petitioner further relies upon the judgment of a co-ordinate Bench of this Court in the case of Sachidanand Singh vs. The State of Jharkhand & Another passed in Cr.M.P. No.2954 of 2022 dated 22.09.2022 wherein in the facts of that case, considering the settlement arrived at between the parties, the co-ordinate Bench quashed the entire criminal proceedings.

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Learned counsel for the petitioner also relies upon the judgment of Hon’ble High Court of Delhi in the case of Prem Kumar vs. The State & Others passed in W.P. (CRL) No.2869 of 2023 & other allied cases dated 30.01.2024 wherein in the facts of that case when the parties were already married to each other; in the facts of that case, the Hon’ble High Court of Delhi quashed the entire criminal proceedings.

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Learned counsel for the petitioner next submits that the victim, in her statement recorded under Section 161 Cr.P.C., has not supported the case of the prosecution rather she has stated that some persons sitting in the office of Director General of Police allured her to register the present case. It is also submitted that the informant has filed a petition in the court of Additional Sessions Judge-V-cum-Special Judge, Jamshedpur to pass necessary orders in view of her statement recorded under Section 164 Cr.P.C. Hence, she does not

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Cr. M.P. No.181 of 2024

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want to proceed with the case. Hence, it is submitted that the order dated 05.12.2019 passed by the learned Special Judge, (POCSO), Jamshedpur in connection with Sonari P.S. Case No.142 of 2019 corresponding to Spl. POCSO Case No.83 of 2019 by which the learned Special Judge has taken cognizance for the offence punishable under Sections 376 (2) (n) and 376 (c) of the Indian Penal Code as well as Section 6 of the POCSO Act against the petitioner and also the orders dated 19.10.2020, 31.05.2022 and 30.08.2022 whereby and where under non-bailable warrant of arrest has been issued against the petitioner in connection with the said case, be quashed and set aside.

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Learned Addl.P.P. appearing for the State, on the other hand vehemently opposes the prayer for quashing and setting aside the order dated 05.12.2019 passed by the learned Special Judge, (POCSO), Jamshedpur in connection with Sonari P.S. Case No.142 of 2019 corresponding to Spl. POCSO Case No.83 of 2019 by which the learned Special Judge, (POCSO), Jamshedpur has taken cognizance for the offence punishable under Sections 376 (2) (n) and 376 (c) of the Indian Penal Code as well as Section 6 of the POCSO Act against the petitioner and also the orders dated 19.10.2020, 31.05.2022 and 30.08.2022 whereby and where under non-bailable warrant of arrest has been issued against the petitioner in connection with the said case and submits that it is a settled principle of law that the offence of rape cannot be quashed on the basis of compromise. It is next submitted that the undisputed fact as made in the F.I.R. is that the minor victim girl was subjected to aggravated penetrative sexual assault on several occasions and as the minor victim girl was aged about 14-15 years at the time of first occurrence, a valid consent for sexual act does

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Cr. M.P. No.181 of 2024

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not arise and hence, the offence punishable under Section 376 of the Indian Penal Code is made out.

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So far as the statement recorded under Section 164 of Cr.P.C. is concerned, it is a settled principle of law that only because in the statement recorded under Section 164 of Cr.P.C., the victim has not supported the contents of the F.I.R. and that cannot be a ground for quashing the entire criminal proceeding particularly when the victim is minor and when the offences are so serious such as aggravated penetrative sexual assault upon a minor victim girl because if criminal proceedings involved in such serious offences are quashed only because in her statement recorded under Section 164 of Cr.P.C. the victim has retracted from the contents of the F.I.R. there is every possibility that the accused person of such cases, will by hook and crook, make the minor victim girls to retract from the contents of the F.I.R. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.

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Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the Hon’ble Supreme Court of India in the case of Narinder Singh and Others vs. State of Punjab & Another reported in (2014) 6 SCC 466 has held as under in paragraph-29:

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“ 29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

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29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and

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have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

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The Hon’ble Supreme Court of India has in no uncertain manner has mentioned that the cases involving the offence of rape, is not to be quashed on the basis of compromise.

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By now it is a settled principle of law that in appropriate cases the Hon’ble Supreme Court of India, in exercise of its jurisdiction under Section 142 of the Constitution of India can quash such proceeding but the High Court is not empowered to quash such proceedings in exercise of its jurisdiction under Section 482 of the Cr.P.C.

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Now, coming to the facts of the case, there is no quarrel that the allegations made in the F.I.R., are sufficient to constitute the offence punishable under Section 6 of the POCSO Act, 2012 as well as Sections 376 (2) (n) of the Indian Penal Code.

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Under such circumstances, this Court is of the considered view that in view of the principle of law settled by the Hon’ble Supreme Court of India, this is not a fit case where the entire criminal proceedings, as prayed for by the petitioner, in view of the compromise entered into between the parties, be quashed and set aside.

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Accordingly, this Cr.M.P., being without any merit, is dismissed.

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In view of disposal of the instant Cr.M.P., I.A. No.987 of 2024 stands disposed of accordingly.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 12^th of February, 2024 AFR/ Animesh

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Ashok Kumar v. the State of Jharkhand

Case brief

What is this about?

What the court decided

Ashok Kumar v. the State of Jharkhand

Case brief

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