S. NIRMAL CHOUDHARY v. STATE OF KARNATAKA BY COTTONPET POLICE STATION

(BY SRI. RANGASWAMY R., HCGP FOR R1 SRI. GOPAL SINGH, ADVOCATE FOR R2) &RESPONDENTS THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AS AGAINST THE PETITIONERS IN SPL.C.NO. 868/2022 PENDING ON THE FILE OF HONBLE ADDL. CITY CIVIL AND - 2 - NC: 2026:KHC:1913 CRL.P No. 5215 of 2022 HC-KAR SESSION JUDGE, FTSC-II, BENGALURU FOR THE OFFENCES PUNISHABLE U/S 376(2)(N) OF IPC R/W SEC.6, 10 OF POCSO ACT. THIS CRL.P, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA ORAL ORDER Petitioner being accused in Special C.C.No.868/2022 pending on the file of the learned Additional City Civil and Sessions Judge, FTSC - II, Bengaluru, registered for the offences punishable under Sections 376, (2)(n) of the Indian Penal Code (for short 'the IPC') and under Sections 6 and 10 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act') is seeking to quash the criminal proceedings initiated against him.

2. Heard Smt. Raksha Keerthana.K., learned counsel for the petitioner and Sri.Rangaswamy R., learned High Court Government Pleader for respondent No.1 and Sri. Gopal Singh, learned counsel for respondent No.2. Perused the materials on record. - 3 - NC: 2026:KHC:1913 CRL.P No. 5215 of 2022 HC-KAR

3. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is: "Whether the petitioner has made out any grounds to allow the petition and to quash the criminal proceedings initiated against him?"

4. My answer to the above point is in the 'Affirmative' for the following: REASONS

5. The admitted facts of the case are that respondent No.2 was born on 10.07.2000. She was engaged to the petitioner on 22.04.2015, when she was aged 15 years. The marriage of the petitioner with respondent No.2 was performed on 10.02.2019, after respondent No.2 attained the age of majority.

6. It is the contention of the petitioner that the relationship between the petitioner and respondent No.2 was strained and there was dissolution of marriage as per the customs prevailing in the community in the presence of the panchas on 05.08.2021. It is also the contention of the - 4 - NC: 2026:KHC:1913 CRL.P No. 5215 of 2022 HC-KAR petitioner that respondent No.2 has filed Crl.Misc.No.98/2021 on 17.09.2021 seeking maintenance under the provisions of Domestic Violence Act, 2005 Act from the petitioner and also making allegations against five other family members. It is also the contention of the petitioner that the father of the petitioner filed a police complaint registered in Cr.No.238/2021 of Rajasthan Police station against respondent No.2 and her father alleging commission of the offence under Sections 420, 406 and 120(B) of IPC on 10.11.2021.

7. It is after all these developments, on 05.03.2022, the present complaint came to be filed by respondent No.2 against the petitioner, which is registered in Cr.No.27/2022 of Cottonpet Police Station for the offences punishable under Sections 376(2)(n) of IPC and under Sections 6 and 10 of the POCSO Act. Now the investigation is completed and the final report came to be filed for the above said offences. The petitioner is before this Court being aggrieved by the initiation of the criminal petition.

8. The materials on record discloses engagement of respondent No.2 with the petitioner was - 5 - NC: 2026:KHC:1913 CRL.P No. 5215 of 2022 HC-KAR performed on 22.04.2015. As per the allegations made by respondent No.2 in the first information, petitioner had came to Bengaluru on 14.01.2016, took her to a movie and committed sexual harassment inside the cinema theatre. It is her further contention that during March 2016, she had gone to Rajasthan along with her father and twice the petitioner has committed penetrative sexual assault. With these allegations, respondent No.2 has filed the first information alleging commission of the offences as stated above. After these incidents, petitioner had married respondent No.2 on 10.02.2019 and they had led marital life for quite sometime. Even though it is stated that marriage is dissolved on 05.08.2021, there is no decree of dissolution of marriage passed by the Court having jurisdiction. However, the fact remains that since then, respondent No.2 and petitioner are not residing together.

9. Even though learned counsel for respondent No.2 contends that there is allegation regarding sexual harassment, (Crl.Misc.P.No.98/2021 field on 17.09.2021 under the provision of the DV Act,) no prima-facie materials are produced before this Court to substantiate the same. The first information filed by respondent No.2 discloses that she consulted her Advocate - 6 - NC: 2026:KHC:1913 CRL.P No. 5215 of 2022 HC-KAR along with her family members, and as per the advice of the Advocate, she has information alleging commission of the POCSO Act. According to respondent No.2, petitioner had married another girl by name Nirmala, which led to marital discord and the relationship was strained between the petitioner and respondent No.2. It is only thereafter, present complaint came to be filed, and in the meantime, more than six years have lapsed from the date of incident.

10. Learned counsel for the petitioner has drawn attention of the Court to Section 198 (6) of Cr.PC. Where there is bar for a Court to take cognizance of an offence under Section 376 of IPC, where such offence consists of sexual intercourse by a man with his own wife, and said wife being under the age of 18 years of the age, in case more than one year has lapsed from the date of commission of the offence. Ofcourse in the present case, as per the allegations, as on the date of incident, respondent No.2 was not the wife of petitioner. Their marriage was performed only after respondent No.2 attaining the age of majority. But since the first information was filed after long lapse of six years, that too after the relationship between the parties is stained, I do not find - 7 - NC: 2026:KHC:1913 CRL.P No. 5215 of 2022 HC-KAR any prima-facie materials to accept the contention of the petitioner.

11. Learned counsel for respondent No.2 contends that about six months prior to filing of the present complaint, another complaint was filed by respondent No.2. But, police have not registered the said complaint. He also contends that a private complaint was also filed by respondent No.2 making similar allegations. But unfortunately, there is no reference to any of these complaints, either in the first information or in the statement of respondent No.2 recorded under Section 164 of Cr.PC, nor in the charge sheet filed by Investigating Officer.

12. Considering all these facts and circumstances, the only conclusion that I can arrive at is that, since the relationship between petitioner and respondent No.2 strained as per the advice received by respondent No.2, she is making allegations with regard the sexual harassment on

14.01.2016 and commission of penetrative sexual assault during March 2016 by filing the first information only on

05.03.2022. - 8 - NC: 2026:KHC:1913 CRL.P No. 5215 of 2022 HC-KAR

13. Even if the final report filed by Investigating Officer is considered, only respondent No.2 and her family members and relatives are cited as witnesses. CW17 is the medical officer of Vani Vilas Hospital, where respondent No.2 was examined. Even though it is stated that the hymen was absent, admittedly, respondent No.2 had married petitioner on

10.02.2019 and for sometime, both of them have led marital life. Therefore, the said material is not helpful to respondent No.2 to substantiate her contention. CW18 is the Forensic expert, to him the cloths of petitioner were referred to. It is stated that FSL report is not yet received. Even if the FSL report is received, in view of the relationship between petitioner and respondent No.2 and they having led marital life as husband and wife, I do not find any prima-facie materials to constitute the offence as stated above.

14. In view of the above, I am of the opinion that the initiation and continuation of the criminal proceedings against the petitioner is in abuse of process of law and the same is liable to be quashed. - 9 - NC: 2026:KHC:1913 CRL.P No. 5215 of 2022 HC-KAR ORDER (i) The Criminal Petition is allowed. (ii) The criminal proceedings initiated in Crime No.27/2022 of Cottonpet Police Station, pending on the file of learned Additional City Civil and Sessions Judge, FTSC - II, Bengaluru, registered for the offences punishable under Sections 376(2)(n) of IPC and under Sections 6 and 10 of the POCSO Act is hereby quashed against the petitioner. Sd/- (M G UMA) JUDGE BH CT:VS List No.: 1 Sl No.: 9