Santhosh v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on :

29.04.2024 Pronounced On :

30.07.2024

CORAM

THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN and CRL.MP(MD).No.15975 of 2023 Santhosh ... Appellant/Sole Accused Vs.

State Rep. By The Inspector of Police, Sanarpatti Police Station, Dindigul District.

(Crime No.741 of 2021) ... Respondent/Complainant Prayer : This Criminal Appeal is filed under Section 374(2) of Cr.P.C., to set aside the judgment and conviction passed by the learned Mahila Fast Track Court, Dindigul, Dindigul District in Spl.S.C.No.138 of 2023, dated 14.09.2023 and acquit the appellant herein.

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For Appellant : Mr.S.Sarvagan Brabhu For Respondent : Mr.R.Sivakumar Government Advocate (Crl.Side)

JUDGMENT

This appeal has been filed to set aside the judgment and conviction passed by the learned Judge, Mahila Fast Track Court, Dindigul District in Spl.S.C.No.138 of 2023 dated 14.09.2023 and acquit the appellant. 2.The appellant who is the sole accused in Spl.S.C.No.138 of 2023 on the file of the learned Judge, Mahila Fast Track Court, Dindigul District, has filed this appeal challenging the conviction and sentence imposed on him for the offence under Section 6 of the Protection of Children from Sexual Offences Act, by the impugned order dated 14.09.2023.

3. Prosecution Case:- According to the prosecution, at the time of occurrence, the victim girl was a minor and her date of birth is 17.06.2004. The victim girl and 2/15

the appellant herein were in love. By making a false promise of marrying the victim girl, the appellant had intercourse with her many times and the victim girl became pregnant and gave birth to the male child on 06.12.2021. Therefore, the appellant was accused of committing offences under Sections 5(l), 5(j)(2) r/w 6 of the POCSO Act. Thereafter, the case in Crime No.741 of 2021 was registered for the offences under Sections 5(l), 5(j)(2) r/w 6 of the Protection of Children from Sexual Offences Act. The investigating officer conducted the investigation and arrested the accused and collected the materials and filed the final report before the learned Judge, Fast Track Mahila Court, Dindigul. The same was taken on file in Special Spl.S.C.No.138 of 2023.

3.1.After taking cognizance, the learned trial Judge framed the charges against the appellant for the offences under Sections 5(l), 5(j)(2) r/w 6 of the POCSO Act. On the basis of charges, he questioned the appellant and the appellant pleaded not guilty and hence, the trial was conducted and the prosecution adduced the evidence of P.W.1 to P.W.13 and marked the documents under Ex.P1 to Ex.P.13. 3/15

3.2. The learned trial Judge, considered the same, examined the appellant under Section 313 Cr.P.C., by putting the incriminating material available against him and he denied the same and hence, the case was posted for examination for the defence witness. On the side of defence, no witness was examined and no document was marked. 3.3. The learned trial Judge after considering the oral and documentary evidence, convicted the accused under Section 6 of the Protection Of Children from Sexual Offences Act, by the impugned order dated 14.09.2023 and sentenced him to undergo 20 years rigorous imprisonment and to pay a fine of Rs.1,000/- (Rupees Thousand only) with six months simple imprisonment in case of default for the offence under Section 6 of the POCSO Act.

4.Aggrieved over the same, the appellant filed this appeal on the grounds stated in the memorandum of grounds of appeal.

5. The learned Additional Public Prosecutor submitted that it is true that the victim married the appellant and they are inclined to compound the offence. But, there is no provision to compound the offence. He also 4/15

submitted that the appellant committed the offence of aggravated penetrative sexual assault and hence, he did not deserve any sympathy.

7. This Court considered the rival submissions and also perused the materials and the impugned order and the precedents relied upon by both parties.

8. Now the question in this case is whether the conviction and sentence passed against the appellant by the Court below under Section 6 of the prevention of children from Sexual Offences Act, is in accordance with law?

9. The appellant's specific case is that he loved the victim girl. Therefore, the situation necessitated elopement with the victim girl. The appellant married the victim after attaining majority on 02.02.2021 and registered the marriage also. To prove the same, they produced the marriage Registration Certificate and the photographs. Further, the victim girl and her mother and also the appellant's mother have filed their statements before this Court affirming the above marriage that they would lead a peaceful married life. The appellant also filed an undertaking 5/15

affidavit that he would be a good husband. Due to the conviction and confinement in prison from the date of the judgment, wife was not able to meet her daily livelihood and hence, she seeks to compound the offence. The appellant also submitted an affidavit before this Court, stating that he is agreeing to lead a happy matrimonial life along with the victim girl. He also stated that after the conviction, the victim frequently visited the jail to see him. Now, after she becoming major, he married her. Therefore, he pleaded that he acted with all bona fides and also undertakes to keep his wife well all his life. The subsequent development that the appellant married the victim girl on attaining the majority of the victim girl on 20.02.2021 has to be taken into consideration. In the said circumstances, this Court feels that there are bonafides in the submission of the both the victim and the appellant.

10. This Court is duty bound to consider the interest of the victim girl's future. As per the affidavit of the victim girl, the appellant married the victim girl on 02.02.2021. Hence, this Court is duty bound to find a way to redress the grievance from all sides. Therefore, this Court feels that this is an extraordinary circumstance in the extraordinary situation of the case and the Constitutional Court has power to mould the Law so as to 6/15

serve the needs of time in order to achieve a harmonious adjustment in human relations by acquitting the appellant and further, prevent the vagrancy and destitution adopting the law laid down by the Hon'ble Supreme Court in the following cases:

Lord Denning once said:

B.P.Achala Anand v. S. Appi Reddy, (2005) 3 SCC 313 Prithipal Singh v.

State of Punjab:

2012(1)SCC10 "Law does not stand still; it moves continuously. Once this is recognised, then the task of a judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time."

"50.Extraordinary situations demand extraordinary remedies.

While dealing with an unprecedented case, the Court has to innovate the law and may also pass an unconventional order keeping in mind that an extraordinary fact situation requires extraordinary measures."

9.Further, the Hon'ble Supreme Court in held as follows:

"Unusual fact situation posing issues for resolution is an opportunity for innovation. Law, as administered by courts, transforms into justice.

The law does not remain static. It does not operate in a vacuum. As social norms and values change, laws too have to be reinterpreted, and recast. Law is really a dynamic instrument fashioned by society for the purposes of achieving harmonious adjustment, human relations by elimination of social tensions and conflicts.

11.This Court also considered and inclined to follow the judgment of this Court rendered in similar circumstances in Crl.A.(MD).No.247 of 2018 and the relevant paragraphs No.4 to 6 are extracted hereunder: 7/15

4. In this regard, it is relevant to rely upon the judgment of the Hon'ble Supreme Court of India in the case of Ramgopal and others vs. The State of Madhya Pradesh reported in 2021 (6) CTC 240 and the relevant paragraphs are extracted hereunder:-

18. It is now a well crystalized axiom that the plenary jurisdiction of this Court to impart complete justice under Article 142 cannot ipso facto be limited or restricted by ordinary statutory provisions. It is also noteworthy that even in the absence of an express provision akin to Section 482 Cr.P.C. conferring powers on the Supreme Court to abrogate and set aside criminal proceedings, the jurisdiction exercisable under Article 142 of the Constitution embraces this Court with scopious powers to quash criminal proceedings also, so as to secure complete justice. In doing so, due regard must be given to the overarching objective of sentencing in the criminal justice system, which is grounded on the sublime philosophy of maintenance of peace of the collective and that the rationale of placing an individual behind bars is aimed at his reformation.

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19.We thus sumup and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extraordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations.

20. Having appraised the aforestated parameters and weighing upon the peculiar facts and circumstances of the two appeals before us, we are inclined to invoke powers under Article 142 and quash the criminal proceedings and 9/15

consequently set aside the conviction in both the appeals.

We say so for the reasons that: Firstly, the occurrence(s) involved in these appeals can be categorized as purely personal or having overtones of criminal proceedings of private nature; Secondly, the nature of injuries incurred, for which the Appellants have been convicted, do not appear to exhibit their mental depravity or commission of an offence of such a serious nature that quashing of which would override public interest; Thirdly, given the nature of the offence and injuries, it is immaterial that the trial against the Appellants had been concluded or their appeal(s) against conviction stand dismissed; Fourthly, the parties on their own volition, without any coercion or compulsion, willingly and voluntarily have buried their differences and wish to accord a quietus to their dispute(s); Fifthly, the occurrence(s) in both the cases took place way back in the years 2000 and 1995, respectively.

quashing of criminal proceedings will advance peace, harmony, and fellowship amongst the parties who have decided to forget and forgive any illwill and have no vengeance against each other; and Seventhly, the cause of administration of criminal justice system would remain uneffected on acceptance of the amicable settlement between the parties and/or resultant acquittal of the Appellants; more so looking at their present age.

5. In view of the aforesaid, the judgment in Spl.CC.No.45 of 2015 dated 19.02.2018 passed by the learned Sessions (Fast Track Mahila) Judge, Namakkal is set aside. The appellant/accused is acquitted of all charges in Spl.CC.No.45 of 2015 dated 19.02.2018 passed by the learned Sessions (Fast Track Mahila) Judge, Namakkal. Fine amount, if any paid, shall be refunded to the appellant forthwith. Bail bonds, if any executed, shall stand cancelled.

6. It is made clear that if the appellant leaves the victim anytime in lurch, the conviction and sentence imposed by the trial court shall stand automatically restored and the respondent 11/15

can secure the appellant to serve the remaining period of sentence.

12 .Accordingly, the appeal is allowed in the following terms: 13.1.The judgment passed by the learned Judge, Mahila Fast Track Court, Dindigul in Spl.S.C.No.138 of 2023 dated 14.09.2023 is set aside and the Superintendent of Police, Central Prison, Madurai, is directed to release the appellant forthwith, unless his confinement is necessary in other cases.

13.2.The appellant is acquitted from all the charges in Spl.S.C.No.138 of 2023, dated 14.09.2023 passed by the learned Judge, Mahila Fast Track Court, Dindigul.

13.3.Fine amount paid by the appellant shall be refunded to the appellant forthwith. 13.4.Bail bond executed by the appellant shall stand cancelled.

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13.5.It is made clear that if the appellant leaves the victim in lurch in future the conviction and sentence imposed by the trial Court shall stand automatically restored and the respondent can secure the appellant to serve the remaining period of sentence.

Consequently, connected criminal miscellaneous petition is closed. 30.07.2024 NCC : Yes/No Index : Yes / No Internet :Yes / No sbn Note: Issue order copy on 30.07.2024.

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To

1. The Judge, Mahila Fast Track Court, Dindigul District

2. The Inspector of Police, Sanarpatti Police Station, Dindigul District.

3.The Superintendent, Central Prison, Madurai.

4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

5.The Section Officer, Criminal Section(Records), Madurai Bench of Madras High Court, Madurai.

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K.K.RAMAKRISHNAN ,J.

sbn Order made in CRL.A(MD).No.1000 of 2023 30.07.2024 15/15