Allowed

Yash @ Tinu v. State of Rajasthan

Rajasthan HC4 Feb 2021CRLMP/1666/2019

Case brief

AI extract

What is this about?

Special Criminal Miscellaneous Petition seeking quashing of criminal proceedings for offences under POCSO and IPC sections 363, 366A, 376. The court allowed the petition under inherent powers, quashing proceedings due to the petitioner and victim's marriage and daughter's birth.

What did the court decide?

Petition allowed; FIR No.74/2017 and todos proceedings before Special Judge POCSO Jodhpur in Case No.12/2018 quashed and set aside.

Yash @ Tinu Vs State of Rajasthan — Child Sexual Offences (POCSO) | Rajasthan HC (2021)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Misc(Pet.) No. 1666/2019

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Yash @ Tinu S/o Vijay Khatri, Aged About 21 Years, By Caste Salwi, Resident Of Durga Mata Marg, Kumharo Ka Bass, Goutampura, District Indore (Mp)

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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Roopa Spouse/o Premnarayan, By Caste Koli, aged about 42 years, Resident Of Kaga Kagri, Sutharo Ka Bass, Nagori Gate, Jodhpur (Raj).

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----Respondents

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For Petitioner(s) : Mr. Mahesh Khayani For Respondent(s) : Mr. SS Rajpurohit, PP Mr. Avinash Bhati, for the respondent no.2

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Order

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04/02/2021

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In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.

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Learned counsel for the petitioner and learned counsel for the complainant have submitted that the petitioner and the complainant are living as happily married couple and have been blessed with a daughter Divyanshi on 18.11.2018 and the birth certificate of the daughter is also on record.

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Learned counsel for the petitioner submits that the date of birth of the prosecutrix is 03.02.2000 and the date of birth of the accused-petitioner is 30.12.1998. Learned counsel for the petitioner further submits that the marriage of the petitioner and

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prosecutrix happened on 26.05.2017, when the petitioner was aged 17 years and 3 months.

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Learned counsel for the petitioner further submits that the daughter was borne when the prosecutrix was 18 years and 9 months. Learned counsel for the petitioner further submits that the FIR itself alleged only the elopement of the prosecutrix with the present petitioner, as alleged by the father of the prosecutrix.

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Learned counsel for the petitioner further submits that in trial Court the statement of the respondent No.2 was recorded, in which, she has refused to make any legal proceedings against the present petitioner. The current age of the petitioner is about 22 years and respondent No.2 is about 20 years. The certified copy of the trial Court regarding the statement of the respondent no.2 is on record and the order of the learned trial Court refusing to close the trial is also on record.

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Learned counsel for the petitioner has relied upon the judgment of Amit Kumar & Ors. Vs. State of Himachal Pradesh & Ors. in Cr. MMO No.384/2020, decided on 17.12.2020, relevant portion reads as under

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"31. In view of the entirety of the facts of the case, as well

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as judicial precedents, a few of which have been mentioned hereinabove, I am of the considered opinion that continuation of these proceedings will only cause unnecessary burden on the trial Court but in all likelihood is going to cause distressing hardship on both the victim as well as the accused, without resulting into any fruitful purpose whatsoever. The accused and the prosecutrix are living happily. The denial of relief may bring the bitterness in the euphoria of new wedding. Moreover, our trial Courts are already burdened with so many cases and it will be a total wastage of the valuable time of the Courts. If these types of proceedings are permitted to be continued and

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the accused are prosecuted, it will serve no purpose whatsoever. Therefore, I am of the considered opinion that this is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure is invoked to quash the above mentioned FIR and consequent proceedings.

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32. In Himachal Pradesh Cricket Association v. State of Himachal Pradesh (SC ); 2018 (4) Crimes 324, Hon'ble Supreme Court holds as under:-

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47. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only because of the reason that matter was already pending as the appellants had filed the Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case, once we hold that FIR needs to be quashed, order of cognizance would automatically stands vitiated.

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CONSEQUENCES:

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33. In Shakuntala Sawhney v. Kaushalya Sawhney , (1979) 3 SCR 639, at p 642, Hon'ble Supreme Court observed as follows:

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The finest hour of Justice arise propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion.

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34. Consequently, this petition is allowed and FIR No.295 of 2017, registered at Police Station Kangra, District Kangra (H.P.) for the commission of offences punishable under Sections 363 , 376 , 506 of the Indian Penal Code and Section 4 of the POCSO, is quashed. Since FIR has been quashed, all the consequential proceedings, if any, are also quashed and set aside. The bail bonds are accordingly cancelled and discharged. Pending application(s), if any, also stands disposed of. "

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Learned counsel for the petitioner has further relied upon the judgment of Mitesh Ashokbhai Chunavala Vs. State of Gujarat in Criminal Misc. Application NO.11267/2020 , decided on 04.09.2020, relevant portion reads as under :- "10. Having heard the arguments advanced by the learned Advocates appearing for the respective parties. Further, there is amicable settlement arrived at between

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the complainant and the accused person by way of an affidavit and also the applicant and the victim have been entered into marriage life, it would be futile exercise if the trial shall take place and the purpose of the judicial process would not be served and therefore in humble view of this Court, it would be just and proper to quash the aforesaid FIR.

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11. In view of the aforesaid facts and circumstances and the further development that took place in the matter as come forward by way of an Affidavit of respondent no.2 as well as marriage certificate, learned Advocate appearing for the applicant has submitted that now the cause does not survive and therefore the FIR may be quashed and set aside.

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12. This Court has referred to the land mark decision of Hon'ble Supreme Court in case of Parbatbhai Aahir vs. State of Gujarat reported in 2017 SCC online SC 1189 and in case of State of Madhyapradesh vs. Laxmi Narayan and Others reported in (2019) 5 SCC 688. Normally, this Court would not entertain the quashing petition in serious offences like offences under Sections 376 and 302 of the IPC. But, in the present case, when the settlement is arrived at between the R/CR.MA/11267/2020 JUDGMENT applicant-accused and the complainant, and the applicant-accused and victim both have married with each other, therefore, the Court is inclined to entertain the petition. Therefore, with respect, latest law is not applicable to the present case.

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13. In view of the aforesaid discussion and the submission made by the learned Advocates appearing for the parties, this Court is inclined to exercise discretion in favour of the applicant vested under Section 482 of the Cr.PC. Therefore, the present petition deserves to be allowed and accordingly stands allowed. FIR being I-11196009200392 of 2020 registered with Jawaharnagar Police Station, Dist. Vadodara City for the offences punishable under Sections 363 , 366 and 376(2)(n) of the Indian Penal Code and under

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Sections 4, 5(1) and 6(1) of POCSO Act, 2012 and all consequential proceedings arising therefrom are hereby quashed and set aside. "

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Learned counsel for the petitioner has further relied upon the judgment of Prasanth & Anr. Vs. State rendered by Hon'ble Madras High Court in Crl.O.P (MD) NO.3463/2020 , decided on 28.02.2020, relevant portion reads as under :-

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"14.Keeping the above principles in mind, let us now consider the instant case as to whether it is a fit case to quash the criminal proceedings based on the settlement arrived at between the parties.

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15.In the case at hand, though the petitioners are charged with for the offences punishable under Section366A and Section 5(l) and 6 of the http://www.judis.nic.in Crl.O.P.(MD).No.3463 of 2020Protection of Child from Sexual Offences Act, 2012 and Section 109 of IPC, it seems now that, the petitioners and the respondents 2 and 3 have amicably settled their dispute between themselves. The first petitioner and the third respondent got married and they have one male child. The respondents 2 and 3 are also not interested in prosecuting the criminal proceedings. In view of the compromise between the parties, the possibility of conviction is also remote and bleak. In the above circumstances, continuity of the criminal proceedings would only cause oppression and prejudice tothe parties, hence, in order to secure the ends of justice, this Court is inclined to quash the criminal proceedings.

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16.Accordingly, this Criminal Original Petition is allowed and as a sequel, the proceedings in Spl.S.C.No.157 of 2018 on the file of the learned District and Sessions Judge, POCSO Court, Madurai, is quashed and the terms of joint compromise memo shall form part and parcel of this order. "

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Learned counsel for the petitioner has further relied upon the judgment passed in Crl. M.C. No.381/2018 decided on 23.05.2019 , relevant portion reads as under:-

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" It is by now well settled that grave and serious offences as the one under Sec.376 (rape) of the I.P.C. cannot be the subject matter of quashment of the impugned criminal proceedings on the ground of settlement between the accused and the victim. {seeShimbhu & Anr. v. State of Haryana [(2014) 13 SCC 318],Parbatbhai Aahir v. State of Gujarat [(2017) 9 SCC 641],Anita Maria Dias v. State of Maharashtra [(2018) 3 SCC290], Sebastian @ Solly v. State of Kerala [(2015) 1 KLJ384, etc.} . However, this Court has held in various decisions including the one as in Freddy @ Antony Francis & Ors. v.State of Kerala & Anr. [2017 KHC 344 = 2018 (1) KLD558) that the exception to the above approach could be in cases where the accused has married the defacto complainant and they have decided to settle all the disputes and for the predominant purpose of the welfare of the defacto complainant/ victim, to ensure her better future life, it is only just and proper that this Court in exercise of the extra ordinary inherent powers under Sec.482 of the Cr.P.C. could quash the impugned criminal proceedings on the ground of settlement between the parties in cases where the accused has married the defacto complainant and the defacto complainant is insisting for quashment of the impugned criminal proceedings, etc.

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5. In the light of the abovesaid aspects, more particularly in the light of the submission made by the 2nd respondent, this Court is inclined to consider the plea for quashment of impugned criminal proceedings as otherwise it will detrimentally affect the family life of 2nd respondent (victim), and even the balance and harmony that could be achieved by them in the resolution of

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disputes that again be irrecoverably lost . It is in the light of these Crl.M.C. No. 381 / 2018..5..aspects that all further proceedings in the impugned Anx.A-1 final report/charge sheet filed in Crime No.734/2014 of Binanipuram Police Station, which has now led to the institution of S.C.No.533/2015 on the file of the Addl. Sessions Court (For the trial of cases relating to atrocities and sexual violation against women and children), Ernakulam, and all further proceedings taken in pursuance thereof against the petitioner (accused) will stand quashed. The petitioner will produce a certified copy of this order before the Sessions Court concerned and before then Investigating Officer concerned for necessary information. "

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Learned Public Prosecutor is not in a position to refute the aforesaid facts.

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This Court is conscious of the fact that the law of POCSO and the allegations like 376 of IPC cannot be closed on account of compromise between the parties, however, on thoroughly seeing the record of this case, this court finds that it is an extraordinary case where the petitioner and the respondent no.2 are leading a happily married life and their daughter Divyanshi, who was borne out of said wedlock has already attained the age of above 2 years and continuance of such proceedings may adversely impact the married life of petitioner and respondent no.2 and the future of the small girl child (Divyanshi) who shall be required to be admitted in school and her recorded parentage may be affected by continuance of trial. Moreover the precedent law cited are directly applicable on present facts.

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Looking into the peculiar circumstances and extraordinary situation, this Court is inclined to exercise the powers under Section 482 of the Cr.P.C.

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In light of the joint submission made by learned counsel for the parties and considering the fact that the petitioner and respondent no.2 are living as a happily married couple while being blessed with a daughter Divyanshi on 18.11.2018, the petition is thus, allowed and proceedings pending before the Learned Special Judge (POCSO Act Cases) Jodhur Metro in Criminal Case No.12/2018; arising out of FIR No.74/2017 registered at Police Station Nagori Gate, Jodhpur for offence under Section 363, 366A, 376 (2) (N) IPC & Section 5 (L)/6, 5 (J) (ii)/6 POCSO Act and 3 (2) (V) & 3(2) (VA) of SC/ST Act against the petitioner is quashed and set aside.

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(DR. PUSHPENDRA SINGH BHATI),J

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98-Sudheer/-

Yash @ Tinu v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Yash @ Tinu v. State of Rajasthan

Case brief

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