In Heinous Offence Of Rape, Proceedings Cannot Be Quashed Even If Parties Have Reached Settlement: Karnataka High Court

Justice HP Sandesh while rejecting the petition filed by a couple said,

"Considering the object and scope of special enactment of POCSO Act, exercising power under Section 482 of Cr.P.C, does not arise."

The petitioners had approached seeking to quash the proceedings pending in special case before the Additional Sessions Judge/Special Judge, Vijayapur, under sections Sections 366 and 376 of IPC and Sections 12, 5(L), 5(J)(II) and 6 of the Protection of Children from Sexual Offences Act, 2012.

As per the complaint lodged with the police in 2019, the accused Anil Khushalkar committed rape on the minor girl-petitioner No.2, in the guise of loving her. As a result, she became pregnant and thereafter, he kidnapped the victim and took her to Kolhapur. The police after conducting an investigation filed a chargesheet against the accused.

The counsel for the petitioners submitted that the accused and victim have married and they have a child. The victim was examined before the Court but she did not support the prosecution's case. It was argued tha the victim has turned hostile and no purpose would be served in continuing the proceedings against the accused.

The petitioners relied on the judgement passed by the High court in the case of Vijaya Kumar vs. State, 2020(3) KCCR 2419, wherein it was held that though the offences are punishable under Section 376 of IPC and the provisions of POCSO Act, since the parties have settled the dispute and accused and victim are living together, the petition filed under Section 482 of Cr.P.C., needs to be allowed and the proceedings has to be quashed.

Findings:

The court on going through the judgement relied on by the petitioners for quashing the proceedings noted,

"This Court while passing an order in the order referred to supra has taken note of the principles laid down in the case of Gian Singh vs. State of Punjab and another reported in (2012) 10 SCC 303 and came to the conclusion that since the victim and the accused have married and they are having good family and the parties have compromised the matter, proceedings have to be quashed. But this consideration is against the principles laid down in the judgment in Gian Singh's case supra and the same cannot be a basis for exercising the discretion to invoke Section 482 of Cr.P.C."

It added, "No doubt, the learned counsel for the petitioners submitted that the victim girl and the accused have filed this petition seeking relief of quashing the proceedings. When the accused has committed an offence under Section 376 of IPC against a minor girl who is below the age of 18 years, even if the victim has given consent, the same is not considered as consent at all."

It also opined, "Though the learned counsel for the petitioners submitted that the victim who was examined before the trial Court has deposed before the Court that she was aged 19 years at the time of incident, whether she was minor or major has to be adjudicated before the trial Court and this Court cannot appreciate the said fact. The matter requires to be tried before the trial Court."

The court also noted that,

"The Hon'ble Apex Court in Gian Singh's case supra has held that the power of the High Court in quashing a criminal proceeding or FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal Court for compounding the offences under Section 320 of Crpc. Before exercising power under Section 482 of Cr.P.C, the High Court must have due regard to the nature and gravity of the crime and social impact. In the present case, the accused has committed offence of rape against a minor girl which attracts the provisions of IPC and also POCSO Act."

Accordingly, it dismissed the petition, directing the trial court not to be influenced by the observations made by this Court while passing the order.

Case Title: Anil S/o Venkappa Kushalkar v. State of Karnataka

Case No: Criminal Petition No. 201199/2021

Date of Order: October 28, 2021

Appearance: Advocate S S Mamadapur, for Petitioner; Advocate Gururaj V Hasilkar, for Respondent

Click Here To Read/Download Order