S.K.Habibar @ Habib Vs State of Karnataka

S.K.HABIBAR @ HABIB, S/O S.K.SIRAJUL, AGED ABOUT 28 YEARS, PRESENTLY RESIDING AT NO.04, 3^RD CROSS, 3^RD MAIN, SIDDESHWARA LAYOUT, SIDEDAHALLI ROAD, BENGALURU – 560 073.

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PERMANENT RESIDING AT: DHULASIMLA RANMAHAL VILLAGE, ULUBERIA POLICE STATION, BAGANDA POST, HAORA DISTRICT, Digitally signed by WEST BENGAL STATE - 711 315. SANJEEVINI J KARISHETTY (PETITIONER IN JUDICIAL CUSTODY) Location: High …PETITIONER Court of Karnataka (BY SRI. GIRISH R., ADVOCATE)

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AND:

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STATE OF KARNATAKA, BY BAGALAKUNTE P.S, REPRESENTED BY ITS SPP, HIGH COURT, BENGALURU - 560 001.

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NC: 2026:KHC:949 WP No. 38341 of 2025

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VICTIM

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D/O SHEIKH MUJAFER, AGED ABOUT 17 YEARS 10 MONTHS, KAMDEPUR VILLAGE, MOLLAHAT POST, SHYAMPUR POLICE STATION, HOWRAH DISTRICT, WEST BENGAL - 711 314.

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…RESPONDENTS

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(BY SRI. B.N.JAGADEESHA, ADDL. SPP FOR R1; SRI. ASHWIN JOYSTON KUTINHA, ADVOCATE FOR R2)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE PROCEEDINGS IN CRIME NO 401/2025 PENDING ON THE FILE OF HON’BLE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, FTSC-II, BENGALURU, FOR OFFENCES PUNISHABLE UNDER SECTIONS 64 OF THE BHARATIYA NYAYA SANHITA, SECTIONS 5(j) (ii) AND 6 OF THE POCSO ACT, OR SECTIONS 9, 10 AND 11 OF THE PROHIBITION OF CHILD MARRIAGE ACT REGISTERED BY BAGALAGUNTE PS AS PER ANNEXURE-D.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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Petitioner – accused No.1 is before this Court seeking permission to compound the offence registered in Crime No.401/2025, pending before the Additional City Civil and

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Sessions Judge, FTSC-II, Bengaluru, for the offences punishable under Sections 64 of the BNS, Sections 5(j)(ii) and 6 of the Protection of Children from Sexual Offences Act, 2012 and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006, on the score that the petitioner – accused No.1 and respondent No.2 - victim are married.

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Heard Sri Girish R., learned counsel for petitioner, Sri B.N.Jagadeesha, learned Additional State Public Prosecutor and Sri Ashwin Joyston Kutinha, learned counsel for respondent No.2.

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Facts, in brief, germane are as follows:

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A crime comes to be registered against the petitioner and

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his parents in Crime No.401/2025, for the offences under Sections 64 of the BNS, Sections 5(j)(ii) and 6 of the Protection of Children from Sexual Offences Act, 2012 and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006. At the relevant point in time, respondent No.2 - victim was 17 years and 10 months. The petitioner and respondent No.2 get married on 03.01.2025, in the presence of the family members both the petitioner and respondent No.2. It transpires that

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when the respondent No.2 gets admitted to the hospital for some health issues, the fact that the victim was conceived when she was less than 18 years comes to be known.

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On the aforesaid facts, the petitioner is before this Court seeking permission to compound the offences. The parties to the lis have filed joint application under Section 528 of the BNSS and the affidavit of the victim before this Court in this regard.

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In the light of the fact that the marriage between the petitioner and respondent No.2 has already taken place and the parties have filed the application seeking permission to compound the offences, I deem it appropriate to accept the application and the affidavit and obliterate the crime registered against the petitioner.

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The Apex Court in the case of MAHESH MUKUND PATEL v. STATE OF U.P. AND OTHERS¹ has held as follows:

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" 5 . On the last date, we had directed learned counsel appearing for the State to get the marriage certificate relied upon by the parties duly verified. Accordingly, an

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1 [2025 SCC Online SC 614]

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affidavit has been filed by Dr. Atul Tripathi, ACP, Sarnath in which it is stated that the marriage certificate has been verified and it is found to be genuine and in fact a true copy thereof has been produced along with the affidavit.

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6. Our attention is invited to the affidavit filed by the third respondent in which she has accepted the fact that she is happily married to the appellant and they have been residing together. She has disclosed her date of birth as 20^th July, 1998. In the record of the Primary School, as can be seen from document at Annexure ‘P-1’, the date of birth of the third respondent is shown as 20^th July, 1998. Ossification test was conducted during the investigation. The report of the test is that on the date of commission of the offence, the age of the third respondent may be between 17½ years to 19 years. There are documents on record to show that the date of birth of the third respondent was 20^th July, 1998. Therefore, when the offence was allegedly committed in September, 2016 she was already a major.

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7. Now that the appellant and third respondent are happily married, no purpose will be served by continuing the prosecution as it will cause undue harassment to the appellant, the third respondent and their children.

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8. Coming to the impugned order, we find that the marriage certificate was placed on record before the High Court. In fact, no objection by the first informant is also recorded in the impugned order. Surprisingly, the High Court instead of entertaining the petition for quashing on the ground of settlement, has observed that the application for dropping criminal proceedings on the basis compromise may be moved before the Trial Court. The High Court completely lost sight of the fact that the Trial Court could not have recorded the settlement and in fact, this was a fit case for the High Court to have exercised its jurisdiction under Section 482 of the Cr. P.C. by quashing the proceedings. Unnecessarily, the parties have been forced to come to this Court.

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9. The impugned order is set aside. FIR No. 567 of 2016 registered with Cholapur Police Station, District Varanasi and proceedings of the Sessions Trial No. 1332

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of 2021 pending before the Special Judge, POCSO Act, Varanasi are hereby quashed."

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(Emphasis supplied)

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The joint application of the parties reads as follows:

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“JOINT APPLICATION FILED BY THE PETITIONER & 2^ND RESPONDENT UNDER SECTION 528 OF BNSS

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The petitioner & 2^nd respondent above named, humbly submits as under-

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1. It is submitted that, the above criminal case has arisen out of a complaint registered in Crime No. 401/2025 of Bagalakunte Layout Police Station, Bengaluru City, for the offences punishable under Sections 64 of the Bharatiya Nyaya Sanhita, Sections 5(j)(ii) and 6 of the POCSO Act, and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act.

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2. It is submitted that, The said case is presently pending on the file of the Hon'ble Additional City Civil And Sessions Judge, FTSC-II, Bengaluru.

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3. It is submitted that, The parties submit that they have amicably settled their differences and have decided to close all disputes between them once and for all.

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4. It is submitted that, The 2nd Respondent / De-facto Complainant has no objection for quashing the criminal proceedings pending against the Petitioner in the above case.

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5. It is submitted that, The parties further submit that the settlement is voluntary, genuine, and free from any coercion or undue influence.

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6. It is submitted that, Therefore, the Petitioner and 2nd Respondent jointly request that this Hon’ble Court be pleased to record the fact of settlement and pass appropriate orders under Section 528 of the

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Bharatiya Nagarik Suraksha Sanhita, 2023, in the interest of justice and equity.

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7. WHEREFORE, the petitioners & 2^nd respondent in the above Criminal Petition may kindly be pleased to allow the above application and consequently quash the proceedings in Crime No 401/2025 pending on the file of Hon'ble Additional City Civil And Sessions Judge, FTSC-II, Bengaluru, for offences punishable under Sections 64 of the Bharatiya Nyaya Sanita, Sections 5(j)(ii) and 6 of the POCSO Act, and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act registered by Bagalagunte PS Layout P.S. As per Annexure –C in the interest of justice.”

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Later, the High Court of Kerala in the case of STATE OF

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KERALA AND ANOTHER reported in 2025 SCC OnLine Ker

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2295, has held as follows:

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“24. Having extensively referred to the above views of the various High Courts, I am only inclined to follow the views of this Court in Vishnu case⁴ , as also, of the various High Courts, where the proceedings were quashed taking stock of the settlement between the parties, ultimately ending in the marriage between the petitioner-accused and the de facto complainant/victim. I am of the opinion that, merely because the offences under the POCSO Act is alleged, there cannot be an absolute proposition of law that the proceedings cannot be quashed based on settlement between the parties, especially when the settlement is genuine and bona fide so as to ultimately result in the marriage between the accused and the victim. As held in many cases, each case will have to be addressed in the peculiar facts obtaining therein and there cannot be an en bloc conclusion that the quashment is wholly impermissible in cases involving POCSO offences. There are offences which are not of a very serious and grievous nature coming under the POCSO Act, say, for

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example, an offence under Sections 11( i ) or ( iv ) of the Act. By saying that the said offences are less serious, this Court is not undermining the significance and seriousness of such offences, since it is perpetrated against a minor. However, when the legal position, even in respect of an offence under Section 307 of the Penal Code, is to the effect that the same can be quashed based upon genuine and bona fide settlement between the parties, there is no reason as to why a less serious offence under the POCSO Act cannot be terminated. Generally, serious offences having a sexual overtone, like rape under the Penal Code and a penetrative sexual assault, etc. under the POCSO Act cannot be terminated by quashing the same, acting only upon the settlement between the parties. It is indeed the offence against the society and not a private issue between the petitioner and the de facto complainant. However, in cases where there exist extreme mitigating circumstances, adherence to that rule will work out injustice. Suffice to say that the choice in this regard will have to be taken based on the attendant facts; and not on the basis of the nomenclature of the statute.

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25. Coming to the instant facts, in both the cases, the petitioner-accused had married the victim. Affidavits sworn to by the victims and their statements recorded by the investigating officer would reveal that they are living a happy married life, along with their child. The petitioner-accused is adequately taking care of the interest of the victim. In one case, the victim is sent for further studies and the child is being taken care of by the petitioneraccused. This Court is of the opinion that these circumstances are extremely extenuating, so as to bring the case outside the scope of the general proposition that serious sexual offences cannot be quashed, acting only upon the settlement between the parties.

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26. The following aspects assume significance in the peculiar nature of the cases, where the offence is followed by the marriage between the perpetrator and the victim:

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(1) Unless the criminal proceedings are terminated by quashing the same, there will be utter chaos, confusion and even havoc in the life of the victim who married the accused and who is leading a happy life. In other words, the life of the victim, the accused and the child, if any, in that relationship will be ruined. Per contra, if the offence is quashed, it will bring in harmony, peace and happiness, thus promoting their family life.

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(2) Unless, the court choose to quash the proceedings, the trauma/agony of the child/victim continues, despite a genuine and bona fide settlement.

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(3) Despite and dehors a bona fide and genuine settlement culminating in the marriage between the petitioner-accused and the victim, if the criminal proceedings are to continue thereby compelling the parties to face the trial the same verge upon abuse of process.

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(4) The ends of justice is in favour of quashment in such category of cases, since it will be an injustice to separate a well knit family by the continuance of the proceedings.

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(5) Quashment of the proceedings will result in rendering total and complete justice to the parties.

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(6) When the crucial witness is the victim, who had married the accused, there exists little chance for her to speak against her own husband/accused, wherefore, the chances of conviction will be too bleak and remote. In other words, no fruitful purpose will be served by continuance of the proceedings.

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(7) Compelling the continuance of a proceedings, which is otherwise settled genuinely and which answers the requirements of the interest of justice will only add to the burden of criminal courts in India, which is otherwise overburdened. ”

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(Emphasis supplied)

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In the light of the judgments of the Apex Court and the High Court of Kerala and that the marriage of the accused with the victim has taken place before the registration of the crime, I deem it appropriate to obliterate the crime, with a rider that in the event, the petitioner would leave the lady in lurch, impugned crime in Crime No.401/2025 would get revived.

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For the aforesaid reasons, the following:

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O R D E R

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[I] Writ Petition is allowed .

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[II] The offences qua the petitioner-accused No.1 under the provisions of Section 64 of the Bharatiya Nyaya Sanhita, 2023, Sections 5(j)(ii) and (6) of the Protection of Children from Sexual Offences Act, 2012 and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006, stands quashed on account of the observations made in the course of the order.

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[III] It is made clear that the offences under the provisions of Sections 9, 10 and 11 of Prohibition of Child Marriage Act, 2006 qua the other accused is not interfered with and therefore, shall continue.

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[IV] The accused No.1 is said to be in judicial custody. Again for the observations made in the course of the order and the quashment of the allegations against the accused No.1, accused No.1-petitioner shall now be released from judicial custody.

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[V] Registry is directed to communicate this order to the prison authorities forthwith for the needful to be done.

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[VI] It is made clear that if the complainant-victim is left in the lurch by the petitioner, the impugned crime, which has now been obliterated on account of the quashment, would get revived.

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SD/(M.NAGAPRASANNA) JUDGE

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Cbc/nvj List No.: 1 Sl No.: 104 CT:SS

S.K.Habibar @ Habib v. State of Karnataka

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S.K.Habibar @ Habib v. State of Karnataka

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