Devender Nath v. State Of Ut Chandigarh And Others
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$("% ! " ))) / 4(5+ 67 * This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of FIR No. 13 dated 20.02.2023 registered under Section 376(2)(n) of the Indian Penal Code, 1860 (hereinafter 'IPC') and Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter 'POCSO Act') at Police Station Sarangpur, Chandigarh and its subsequent proceedings pending in the Court of learned Additional Sessions Judge, Chandigarh.
FACTUAL BACKGROUND 2.
Briefly, the facts are that respondent no. 2-victim T married the petitioner on 12.09.2022 of her own accord when she was 17.5 years old, with the blessings of their respective families. The couple started cohabitating in a rented accommodation in Burali and during the course of their marriage, victim T got pregnant. On 20.02.2023, victim T was 8 months pregnant when she visited the Government Multi Specialty Hospital, Sector 16, Chandigarh, along with her husband, complaining of stomach pain.
3.
Suspecting the victim to be a minor, the doctors asked for a copy of her Aadhar Card. On finding their suspicions to be true, the doctors reported the same to the police in view of Section 19 of the POCSO Act. Thereafter, FIR (supra) was registered, citing victim T to be the complainant, without her consent and forced her to sign some documents. Consequently, the police arrested the petitioner, without verifying any of the documents.
4.
Victim T gave birth to a baby boy on 22.02.2023 at Government Multi Specialty Hospital, Sector 16, Chandigarh. However, the baby was shifted to PGIMER, Sector 12, Chandigarh owing to his critical condition. Unfortunately, his condition deteriorated further and the baby boy died on 08.03.2023.
5.
The petitioner was provided a Legal Aid counsel who moved his bail application before the concerned Court. However, the same was rejected vide order dated 14.03.2023 (Annexure P-3) passed by Fast Track Special Court, Chandigarh. Thereafter, this Court took suo moto cognizance of the same and the following directions were issued vide order dated
29.03.2023 (Annexure P-4) in CM-4621-CWP-2021 in CWP-3799-2023: "In order to reduce the agony of these two young persons in future, a direction is given to the respondents to get the statements of the victim, the accused (Devender Nath) and their family members recorded before the concerned Court. District Legal Service Authority, Chandigarh is also directed to get a Legal Aid Counsel for both the victim and Devender Nath and thereafter, get their statements recorded. The Social Welfare Department can also send a Child Welfare Counsel and record statement of the victim. After getting their statements recorded, the Legal Aid Counsel can file a petition under Section 482 Cr.P.C. before this Court and get the FIR quashed in accordance with law. A further direction is given to the Legal Service Authority, Chandigarh, to give compensation to the victim for undergoing such trauma, in which she has lost the child for no fault of her.
The above exercise be completed within a period of six (06) weeks."
6.
In compliance of the above-mentioned directions, respective statements of the petitioner and victim T were recorded by the learned trial Court on 18.04.2023 (Annexure P-5 and P-6, respectively). A compromise dated 30.04.2023 (Annexure P-11) was arrived at wherein it was stated that there is no ill will between the parties and the victim has no objections if the FIR(supra) is quashed. In compliance of the above order, a report dated 12.02.2024 has been received from the concerned jurisdictional Court that the compromise between the parties is genuine and arrived at without any pressure or coercion from anyone.
CONTENTIONS 7.
Learned counsel for the petitioner inter alia contends that the petitioner and victim T are young persons in their early twenties who had
entered into a wedlock of their own volition, with the blessings of both the families. No complaint was made either by respondent No. 2 or her parents since solemnization of marriage on 12.09.2022. The doctors supplied information to the police after finding respondent no. 2 to be 8 months pregnant on examination on 20.02.2023, only to avoid prosecution under Section 21 of the POCSO. Neither respondent no. 2 nor her parents have supported the allegations in the FIR(supra) or want to pursue prosecution of the petitioner. Respondent no. 2 was made complainant immediately without informing her of the same. The counselor merely told her that in case she requires any assistance, a support person from the Child Welfare Committee will be provided to her.
8.
He further contends that even though respondent no.2 had not attained the age of majority, the sexual contact between her and the petitioner was consensual and the incident is devoid of any mens rea as the couple are cohabitating as legally wedded couple. The petitioner and respondent no. 2 are roped in needless prosecution, disrupting their family life. In her statement dated 18.04.2023 (Annexure P-6), respondent no. 2 has categorically stated that she did not move any complaint before the police or the doctor. The petitioner was arrested when respondent no. 2 was going through labour. The continuation of criminal proceedings against the petitioner serves no just purpose but only inflicts avoidable agony on to the couple. In a bid to rescue her husband from this unjust prosecution, respondent no.2 could not look after their newborn baby properly which ultimately led to his untimely demise. The petitioner was not allowed to be with his wife during the birth of their child or after due to mishandling of the case by the police.
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Per contra learned State counsel opposes the prayer of the petitioner on the grounds that respondent no. 2 was 8 months pregnant at the time of registration of the FIR (supra), which is sufficient to invoke the POCSO Act as well as attract Section 376(2)(n) of the IPC. Since respondent no. 2 was a minor, her consent for the sexual act at the time holds no relevance. He further relies upon the judgment rendered by the Hon'ble Supreme Court in Independent Thought v. Union of India and others 2017 AIR SC 4904 whereby the Exception 2 to Section 375 of the IPC has been expressly stuck down qua minor wife under the age of 18 years. Learned counsel submits that the Kerala High Court in Hafsal Rahman N.K. versus State of Kerala Crl. MC. No. 5576 of 2019(F) decided on 30.08.2019 has quashed the FIR registered under the POCSO Act on the basis of compromise and SLP No. 24362 of 2021 against the same is pending
consideration before the Hon'ble Supreme Court. ** (
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&9 12.09.2022, with the blessings of their families, when respondent no. 2 was a minor of the age of 17.5 years. The couple had been blissfully residing together and were on the family way when respondent no.
> 2 went to the hospital for a check-up on 20.02.2023. No complaints were made by respondent no. 2 or her parents during the subsistence of the marriage or before that. The genesis of the instant FIR lies in the reporting of respondent no. 2's pregnancy by the doctors under Section 19 of the POCSO Act. = ";;
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Section 5 of the Hindu Marriage Act, 1955 prescribes conditions for a Hindu marriage. Section 5(iii) is reproduced below: .0 /
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FIR No. 13 dated 20.02.2023 registered under Section 376(2)(n) of the IPC and Section 6 of POCSO Act at Police Station Sarangpur, Chandigarh and its subsequent proceedings are quashed. 0 9
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