IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP (M) No. 781/2018
.
Date of decision: 6.7.2018
Chandan Kumar …… Petitioner
Vs.
State of H.P. ….. Respondent
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1
For the petitioner:
r Mr. N. S. Chandel, Advocate.
For the respondent: Mr. Vinod Thakur Mr. Sudhir
Bhatnagar, Additional Advocate
Generals with Mr. Bhupinder
Thakur, Deputy Advocate General.
Investigating Officer/ASI Dinesh
Sharma, Women Police Station,
Mandi, District Mandi.
Petitioner produced in custody of
HHC Ghanshyam and HHC Dhani
Ram, Police Line Mandi.
Tarlok Singh Chauhan (Oral)
The petitioner has sought regular bail in case FIR
No. 31/2018, dated 11.5.2018, registered at Women Police
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
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Station, Mandi, District Mandi, H.P. under Section 376 IPC and
Section 4 of the Protection of Children from Sexual Offences Act,
.
2012.
2 This Court vide order dated 5.7.2018 had directed
the petitioner and the victim as also their respective parents to
remain present before this Court on 6.7.2018 on the
representation made by the petitioner that he had informally got
3
r to
married to the victim and it was the expressed consent of both
the families of the parties.
Admittedly, the FIR in this case has not been lodged
by the victim, but appears to have been registered at the
instance of the Child Welfare Committee, Mandi.
4 As regards the victim, she appeared before this Court
donning bridal chura and vermilion on her forehead by parting
hair and claimed that she had already got married to the
petitioner and that is why she was donning bridal chura and
vermilion, which is otherwise put on by a Hindu married
woman.
5 As regards the family members of the victim, they
have specifically stated that the petitioner is their son-in-law
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and immediately on his release, they would formally solemnize
the marriage of their daughter (victim) with the petitioner.
.
6 Thereafter, this Court had the occasion to interact
with the parents of the victim and sister of the petitioner, who
too stated that immediately on release of the petitioner, his
marriage would be solemnized with the victim.
7 The records produced by the investigating agency
reveal that the victim has nowhere claimed of the offence, for
which the petitioner has been charged and rather claimed
herself to be madly in love with the petitioner. Even when the
statement of the victim was recorded before the learned Judicial
Magistrate, 1st Class, Court No.1, Mandi, under Section 164
Cr.P.C., she categorically stated that she and the petitioner
were knowing each other for the past two years and would often
meet. Thereafter, they fell in love and out of love and affection
for the petitioner, she had entered into physical relation with
the petitioner, as a result whereof, she had become pregnant.
She went on to state that there was no fault on the part of the
petitioner for her pregnancy and she after deliberately and
willfully given deep thought though had decided not to
terminate her pregnancy. She further stated that she did not
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want the petitioner to be prosecuted as she wants to get married
with him.
.
8 Bearing in mind the specific stand taken by the
victim that she has already got married to the petitioner, no
offence of sexual assault can be said to be made out as the
marriage, though informal, between the parties at best can be
termed to be voidable and not void. That apart, it was not the
victim, who was at all aggrieved by any action of the petitioner
and lodged the FIR, but, as observed above, it was the Child
Welfare Committee.
9 Once there is no dispute between the parties, then
obviously the law cannot be so harsh, which would stand as a
wall between the parties because the law has to secure the
future of the parties and the criminal proceedings would only
cause irreparable harassment and hardship and may even
tarnish and spoil the reputation of the petitioner.
10 In the given circumstances, when the victim claimed
to have married the petitioner, there is no possibility of her
supporting the charge in case the petitioner is put to trial.
11 Therefore, in such circumstances, registration of
FIR, that too, at the instance of Child Welfare Committee and
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not the victim would only cause untoward torture and
harassment apart from creating undue social and psychological
.
pressure over the parties, whereby the victim would be called in
the witness-box to depose against the petitioner and obviously
would not support the prosecution case. Hence, there is not
only remote or bleak but rather no possibility of the criminal
proceedings culminating in the judgment of conviction even if
permitted to proceed with. Rather, the continuation of criminal
proceedings may result in disharmony amongst not only the
petitioner and victim, but also their respective families, which is
not in the interest of the society as also the parties. The Court
has to make an endeavour to save and secure the future of the
parties so as to enable them and their family members to lead a
life with respect and dignity in the society.
12 In Madan Mohan Abbot vs. State of Punjab (2008)
4 SCC 582, the Hon’ble Supreme Court emphasized and
advised as under:-
“We need to emphasize that it is perhaps advisable that in
disputes where the question involved is of a purely
personal nature, the court should ordinarily accept the
term of the compromise even in criminal proceedings as
keeping the matter alive with no possibility of a result in
favour of the prosecution is a luxury which the courts,07/07/2018 23:01:45 :::HCHP
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grossly overburdened as they are, cannot afford and that
the time so saved can be utilized in deciding more effective
and meaningful litigation. This is a common sense.
approach to the matter based on ground of realities and
bereft of the technicalities of the law.”
13 In the given facts and peculiar circumstances of the
case, FIR No. 31/2018, dated 11.5.2018, registered against the
petitioner at Women Police Station, Mandi, District Mandi, H.P.
under Section 376 IPC and Section 4 of the Protection of
Children from Sexual Offences Act, 2012 is quashed and the
petitioner, who is in custody, is directed to be released
forthwith, if not required in any other case.
14 The petition stands disposed of in the aforesaid
terms.
An authenticated copy of this order be supplied to
the parties concerned by the Court Master today itself.
6th July, 2018 (Tarlok Singh Chauhan)
(pankaj) Judge
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