Dismissed

Sri Honnappa G C v. State by

Karnataka HC6 Jun 2022CRL.P/1770/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a criminal petition seeking to quash trial under IPC and POCSO Act where a minor girl married the accused. The Court held that due to the minor's age and heinous nature of POCSO offences, settlement and cited precedents were inapplicable, preventing interference with the ongoing trial.

What did the court decide?

Criminal Petition dismissed; observations made do not influence the ongoing trial.

Sri Honnappa G C Vs State by — Child Sexual Offences (POCSO) | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 06^TH DAY OF JUNE, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.1770 OF 2022

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BETWEEN:

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SRI HONNAPPA G.C., S/O SRI CHANNABASAVAIAH AGED ABOUT 30 YEARS R/AT “THOTADA MANE” GANADALU, HULIYAR HOBLI CHIKKANAYAKANAHALLI TALUK TUMAKURU DISTRICT – 572 218.

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... PETITIONER

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(BY SRI SATISH R.GIRJI, ADVOCATE)

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AND:

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STATE BY PEENYA POLICE YESHWANTHAPURA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001.

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MALLIKARJUN 38 YEARS S/O ESHWARAPPA R/AT NO 19, 1^ST FLOOR 2^ND CROSS, VENUGOPALNAGAR NAGASANDRA POST, PEEENYA BENGALURU – 560 058.

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... RESPONDENTS

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(BY SRI SHANKAR H.S., HCGP FOR R1;

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SRI RAJA SUBRAHMANYA BHAT B., ADVOCATE FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO a) QUASH THE ENTIRE PROCEEDINGS IN CR.NO.221/2021 IN SPL.C.C.NO.1412/2021, FOR THE OFFENCE P/U/S 363, 366, 376, 468, 471, 420 OF IPC AND SECTION 4 AND 6 OF POCSO ACT AND SECTION 9 AND 10 OF PROHIBITION OF CHILD MARRIAGE ACT, FILED BEFORE THE FTC-II CITY CIVIL AND SESSIONS JUDGE (CCH-55), SITTING IN SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT OR

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b) DIRECT THE TRIAL COURT BY DISPOSE OF THE SPECIAL CASE WITHIN TWO MONTHS.

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 21.04.2022, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The petitioner is before this Court calling in question proceedings in Special C.C.No.1412 of 2021 pending before the FTC-II, City Civil and Sessions Judge, Bangalore Urban District arising out of Crime No.221 of 2021 registered for offences punishable under Sections 363, 366, 376, 468, 471, 420 of the IPC, Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (‘the POCSO Act’ for short) and Sections 9 and 10 of the Prohibition of Child Marriage Act, 2006.

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Heard Sri Satish R.Girji, learned counsel appearing for the petitioner, Sri H.S.Shankar, learned High Court Government Pleader appearing for respondent No.1 and Sri Raja Subrahmanya Bhat B., learned counsel appearing for respondent No.2.

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Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:

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It is the allegation that on 21-07-2021, according to the complainant/father of the victim is, his daughter went missing on 16-07-2021 and did not return home. On registration of the complaint, a FIR came to be registered in Crime No.221 of 2021 only for the offence punishable under Section 363 of the IPC. It was the case of the complainant that the victim was residing with her grandmother in Ganadalu Village in Huliyar Hobli and one of the distant relative had brought an alliance for the victim.

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Since the mother of the victim had passed away 10 years ago, the complainant had married for the second time after the death

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of his first wife and was residing at Bangalore. It is also narrated that as there was no care taker for the victim girl, the grand-mother of the victim girl proposed the victim to get married to the accused/petitioner. It is also averred in the petition that the family members came together and got the victim girl married on 16-07-2021 and also registered the same before the Office of the Sub-Registrar, Gubbi, Tumkur District. After registration of the complaint on 21-07-2021 by the father of the victim, the petitioner was arrested on 25-07-2021, at the time when the victim and the petitioner were residing together. On investigation being conducted by the Police on the complaint for the girl going missing, the Police filed a charge sheet for several offences including the aforesaid offence of kidnap as was found while registering the complaint. On filing of the charge sheet, the trial Court proceeded with the trial at which point in time, the petitioner has knocked the doors of this Court calling in question the entire proceedings.

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The learned counsel appearing for the petitioner and the learned counsel representing the 2^nd respondent/complainant would in unison submit that the petitioner and the victim girl had married and they are members of the same family. They also submit that the matter between the families is settled and if the Court pleases, they would place on record such settlement arrived at between the parties.

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The learned High Court Government Pleader appearing for the State would however object to any kind of settlement arrived at, in a case where involvement of a child within the meaning of the provisions of the POCSO Act.

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In reply, the learned counsel for the petitioner would seek to place on record judgments of the Apex Court and that of this Court, where the Apex Court and this Court have quashed proceedings against the accused on a settlement arrived at between the parties.

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I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.

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The afore-narrated facts are not in dispute. The Police

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after investigation have filed a charge sheet. Column No.7 of the charge sheet reads as follows:

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The allegation in the charge sheet is that, as on the date of the girl going missing and later being found in the company of the accused, the age of the victim as on the date of the incident i.e., 16-07-2021, was 17 years, which fact is undisputed. Pursuant to the charge sheet being filed by the Police, trial is being held against the petitioner. In the petition, the petitioner contends that there is a delay of six days in lodging the complaint as the victim has gone missing and only missing complaint has been lodged. After about 6 days, the subject complaint has been lodged for so many offences. The victim girl is aged 17 years and 6 months as per the charge sheet but in fact she is more than 18 years and got the marriage registered before the Sub-Registrar. Therefore, the offences under the POCSO Act would not get attred and since the victim ultimately got married to the petitioner on her own will, no offence can be laid against the petitioner on any of the provisions of law.

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After the matter having been reserved for its judgment, the learned counsel for the petitioner has also placed on record the evidence in the trial held on 16-04-2022 whereby PWs 1 to 3 have all turned hostile. The consideration of the case at hand cannot be on the strength of the aforesaid documents. The aforesaid documents would clearly indicate that as on the date of commission of offence the victim was only 17 years of age or 17 years and 6 months to be specific and, therefore, is a child within the definition of ‘child’ under the provisions of the POCSO Act.

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It is too farfetched for the petitioner to contend at this stage that the victim girl was willing to marry the petitioner or was in love with him. The allegations made against the petitioner are the one punishable under Sections 4 and 6 of the POCSO Act. Section 4 deals with punishment for penetrative sexual assault and Section 6 deals with punishment for aggravated penetrative sexual assault. Sections 9 and 10 of the Prohibition of Child Marriage Act, 2006 are also invoked since

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the age of the victim is below 18 years apart from the offences under the IPC. Therefore it is for the petitioner to face trial and come out clean in the said trial. At this stage this Court cannot exercise its jurisdiction under Section 482 of the Cr.P.C. and interfere with the ongoing trial. If the witnesses have turned hostile, it is for the Special Judge to consider those circumstances while rendering its verdict. There is no ground to interfere on merit of the matter in the facts of the case at hand.

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The other submission made by both the learned counsel appearing for the petitioner and the 2^nd respondent is that, elders in the family of both the petitioner and the victim have spoken to each other, are ready and willing to settle the matter and would place such settlement before this Court in the event this Court so directs the concerned. The offence involved is the one punishable under Section 376 of the IPC and that of the provisions of the POCSO Act, which are committed on the victim girl who is aged below 18 years and which are heinous in nature.

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The reliance placed on several judgments of the Apex Court and that of this Court are distinguishable on the facts pertaining in the case before the Apex Court or in the case before this Court. The Apex Court in the case of MAFAT LAL AND ANOTHER v. THE STATE OF RAJASTHAN¹ , closed the proceedings against the accused therein on the ground that no fruitful purpose would be achieved in continuing the trial against the accused as the incident of abetment therein had happened on 22-05-2005 after which, the victim and the accused had got married and had a child and the case was brought before the Apex Court after about 16 years of occurrence of the incident. It is in those circumstances, the Apex Court sought to quash the proceedings against the petitioner therein on the ground that kidnapping would necessarily involve enticing or taking away any minor of 18 years of age and the abductee had clearly stated that she was neither taken away nor induced and had left her house on her own free will. Therefore, the facts therein are entirely different from the facts obtaining in 1 Criminal Appeal No. 592 of 2022 decided on 28th March 2011

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the case at hand. The said judgment rendered by the Apex Court would not be of any assistance to the learned counsel appearing for the petitioner. The other judgment relied on in the case of UDAY v. STATE OF KARNATAKA² , is again distinguishable on facts of the case at hand as the appellant and the prosecutrix therein were deeply in love and also had sexual intercourse on consensus. It is in that light the Apex Court quashed the proceedings against the accused therein. It was not a case where the victim was below 18 years of age at the time when the incident had occurred. The Apex Court in fact records that the victim was aged 19 years.

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Insofar as the judgment rendered by this Court in the case of D.S. KARTHIK v. STATE BY R.T. NAGAR POLICE STATION³ , would also be distinguishable on facts as it was a case concerning breach of promise of marriage and what was alleged was offences punishable under Sections 376 and 417 of the IPC. Sexual intercourse therein was also consensual but on

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2 (2003) 4 SCC 46

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3 2017 (1) Kar.L.R.687

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the promise of marriage. A co-ordinate Bench of this Court held that having sexual intercourse on the promise of marriage and later, breach thereof cannot drive home the offence of cheating or rape. One more judgment cited was that of the Apex Court in the case of PRAMOD SURYABHAN PAWAR v. THE STATE OF MAHARASTRA AND ANOTHER⁴ . The said judgment was following the judgment in the case of UDAY (supra) as it was a clear case of consensual sexual act. Therefore, all the judgments that the learned counsel appearing for the petitioner or the learned counsel appearing for the 2^nd respondent rely on are distinguishable without much ado. Therefore, no settlement can be accepted or the proceedings against the accused be terminated on account of such settlement in a case where it involves offences punishable under Section 376 of the IPC and the provisions of the POCSO Act. Every case that has been terminated by quashing the proceedings against the accused on a settlement were or are owing to the peculiar facts obtaining in

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4 Criminal Appeal No.1165 of 2019 decided on 21st August, 2019

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those respective cases - “every case cannot be painted with the same brush ”.

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For the aforesaid reasons, the criminal petition lacks merit and is dismissed.

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It is made clear that the observations made in the course

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of the order would not influence or bind the on-going trial against the accused/petitioner or any other person. The observations made are only for the purpose of consideration of the case of the petitioner under Section 482 of the Cr.P.C.

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Sd/JUDGE

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nvj CT:MJ

Sri Honnappa G C v. State by

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Sri Honnappa G C v. State by

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