K. Dhandapani v. State by the Inspector of Police

arising out of Case Crime No. 110 of 2016, Under Section 363, 366, 376 I.P.C. and Section 3/4 Prevention of Children From Sexual Offences Act, Police Station-Chaubeypur, District- Varanasi pending in the court of Additional District Judge, Court No. 7, Varanasi in pursuant to compromise dated 05.03.2025 (Annexure No.16) to this affidavit. It is, further prayed that this Hon'ble Court may kindly be pleased to stay the further proceeding of Case No. 90 of 2016 State Vs. Harish Chandra alias Gautam arising out of Case Crime No. 110 of 2016, Under Section 363, 366, 376 I.P.C. and Section 3/4 Prevention of Children From Sexual Offences Act, Police Station- Chaubeypur, District- Varanasi pending in the court of Additional District Judge, Court No. 7, Varanasi, during the pendency of present application before this Hon'ble Court, otherwise the applicants will suffer irreparable loss and injury. And/or to pass such other and further order which this Hon'ble Court may deem fit and proper under the circumstances of the case."

4. Learned counsel for applicant submits that though applicant is a named and charge sheeted accused and also facing trial before Court below, however, in view of the facts as have now emerged on record, the criminal prosecution of applicant cannot be sustained any further. As such, the present application is liable to be allowed and the impugned criminal proceedings pending against applicant before Court below are liable to be quashed by this Court.

5. In furtherance of aforesaid submission, the learned counsel for applicant submits that criminal prosecution of applicant was set in motion when an FIR dated 06.04.2016 was lodged by the first informant-opposite party-4 Smt. Meera (mother of the prosecutrix) and was registered as Case Crime No. 0110 of 2016, under Sections 363, 366 IPC, Police Station-Chaubepur, District- Varanasi. In the aforesaid FIR, applicant-Harish Chandra @ Gautam was nominated as named accused whereas few unknown boys were also arraigned as accused.

6. Subsequent to the aforementioned FIR, applicant solemnized marriage with the prosecutrix on 31.03.2016 in accordance with Hindu Rites and Customs. As such, the prosecutrix became the legally wedded wife of applicant. By reason of above, the prosecutrix started residing with applicant as his legally wedded wife. Bona-fide of the parties is further evident from the fact that marriage of the parties has been registered under the provisions of U.P. Marriage Registration Rules, 2017. Photo copy of the marriage registration certificate dated 28.04.2016 has been brought on record and is at page 30 of the paper book. On the above premise, the learned counsel for applicant submits that once the marriage of the parties has been registered under the relevant Rules then there is a statutory presumption with regard to valid and legal marriage of the parties. From the aforesaid wedlock, 3 children namely (1) Anushka (date of birth 03.12.2017), (2) Annu (date of birth 07.11.2021) and (3) Payal (date of birth 19.11.2023) were born. Their birth certificates have also been brought on record and are at pages 38, 39 and 40 of the paper book respectively. As per the birth certificates of the children born out of the wedlock of applicant and the prosecutrix, applicant is shown as the father, whereas the prosecutrix is shown as the mother of the children. On account of aforementioned facts, parties amicably settled their dispute outside the Court. On the basis of settlement by the parties, a compromise was entered into. Subsequently, the terms of the compromise were reduced to writing. Thereafter, a compromise deed dated 05.03.2025 was prepared and filed before Court below. On the above premise, the learned counsel for applicant thus submits that in view of aforementioned subsequent developments that have taken place, the criminality, if any, committed by applicant now stands washed of. In view of the subsequent developments as noted herein above, the chances of conviction of accused-applicant is not only remote but also bleak. As such, the resulting trial shall only entail loss of judicial time in a futile pursuit particularly when torrents of litigation drown the Courts with an unimaginable flood of dockets.

7. On the above conspectus, the learned counsel for applicant thus submits that no useful purpose shall now be served in prolonging the criminal prosecution of applicant. In case, the criminal prosecution of applicants is allowed to continue, a happy family shall stand broken.

8. Learned counsel for applicant has then invited the attention of Court to the judgments of Supreme Court in (1) K. Dhandapani Vs. State by the Inspector of Police, 2022 SCC OnLine SC 1056, (ii) Mafat Lal Vs. State of Rajasthan, (2022) 6 SCC 589 and (iii). Criminal Appeal No. 41 of 2024 (Shriram Urav Vs. State of Chhattisgarh) decided on 30.01.2025, wherein the Apex Court quashed the criminal prosecution of accused therein on the ground that the accused therein had solemnized marriage with the prosecutrix and further Court cannot turn a blind eye to the said development. It is thus urged by the learned counsel for applicant that since the present applicant has also solemnized marriage with the prosecutrix, as such, no exception can be carved out in the case of present applicant. Moreover, the subsequent developments, which have taken place between the parties are not liable to be ignored by this Court. On the cumulative strength of above, the learned counsel for applicant thus submits that present application is liable to be allowed by this Court.

9. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the present application. Learned A.G.A. contends that since the prosecutrix was a child within the meaning of the term 'child' as defined in the POCSO Act on the date of occurrence, therefore, the subsequent developments, if any, will not washed off the criminality committed by applicant as suggested by the learned counsel for applicant. Criminality alleged to have been committed by applicant is not private in nature but a crime against society. The prosecutrix was a young and innocent girl below 18 years of age on the date of occurrence. Applicant is guilty of dislodging the modesty of prosecutrix. Referring to the judgment of Supreme Court in State of Kerala VS. Hafsal Rahman N.R., Special Leave Petition (Criminal) Diary Nos. 24362 of 2021, the learned A.G.A. submits that the Apex Court in aforementioned judgment has itself provided that there can be no compromise in matters arising out of POCSO Act. As such, the compromise deed dated 05.03.2025 entered into by the parties, copy of which is on record as Annexure-16 to the affidavit, is of no consequence. As such, no interference is warranted by this Court in present application. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

10. On the other hand, Mr. Haidar Ali, the learned counsel representing opposite parties 4 the first informant and 5 the prosecutrix/victim does not oppose the present application. He submits that he has received instructions not to oppose the present application. According to the learned counsel representing opposite parties 4 and 5, it is now an admitted fact that to the parties applicant has solemnized marriage with the prosecutrix. From the said wedlock, 3 children namely (1) Anushka (date of birth 03.12.2017), (2) Annu (date of birth 07.11.2021) and (3) Payal (date of birth 19.11.2023) were born. On date, the prosecutrix along with her children is residing with applicant as a happy family. It is thus urged by the learned counsel representing opposite parties 4 and 5 that he cannot have any objection, in case, the present application is decided by this Court taking into consideration the aforesaid facts and circumstances.

11. However, the learned A.G.A. fairly submits that in view of the counter affidavit filed by opposite parties 4 and 5, he does not wish to file any counter affidavit in the matter.

12. Be that as it may, the crux of the matter is that applicant has solemnized marriage with the prosecutrix and from the said wedlock, three children have been born. The parties are living together as a happy family.

13. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. Haidar Ali, the learned counsel representing opposite parties 4 and 5 and upon perusal of record, this Court finds that the criminal prosecution of applicant commenced when an FIR dated 06.04.2016 was lodged by the first informant-opposite party-4 Smt. Meera (mother of the prosecutrix). However, subsequent to the aforementioned FIR, applicant solemnized marriage with the prosecutrix on 31.03.2016 in accordance with Hindu Rites and Customs. As such, the prosecutrix became the legally wedded wife of applicant. By reason of above, the prosecutrix started residing with applicant as his legally wedded wife. Bona-fide of the parties is further evident from the fact that marriage of the parties has been registered under the provisions of U.P. Marriage Registration Rules, 2017. Photo copy of the marriage registration certificate dated 28.04.2016 has been brought on record and is at page 30 of the paper book. Once the marriage of the parties has been registered under the relevant Rules then there is a statutory presumption with regard to the valid and legal marriage of the parties. Apart from above, the aforesaid wedlock, 3 children namely (1) Anushka (date of birth

03.12.2017), (2) Annu (date of birth 07.11.2021) and (3) Payal (date of birth 19.11.2023) were born. Their birth certificates have been brought on record and are at pages 38, 39 and 40 of the paper book. As per the birth certificates of the children born out of the wedlock of applicant and the prosecutrix, applicant is shown as the father, whereas the prosecutrix is shown as the mother of the children. In view of aforementioned subsequent developments that have taken place, the criminality, if any, committed by applicant now stands washed of. Furthermore, this Court finds that in view of the above-mentioend subsequent developments as noted herein above, the parties amicably settled their dispute and entered into a compromise. Subsequently, the terms of the compromise were reduced to writing by way of a compromise deed date d05.03.2025, copy of which is on record at page 79 of the paper book. Opposite parties 4 and 5 i.e. the first informant and the prosecutrix/victim has put in appearance in present application. They have filed their respective short counter affidavit but they have not opposed the present application. As such, there is nothing on record to doubt the marriage of the parties or the cohabitation of applicant and the prosecutrix as husband and wife. In view of above, this Court does not find any good ground to prolong the criminal prosecution of applicant. In view of the subsequent deveopments as noted herein above, the chances of conviction of accused-applicant is not only remote but also bleak. As such, the trial of applicant shall be the futile exercise. In view of above, the learned counsel for applicant is right in submission before this Court that in case, the criminal prosecution of applicant is allowed to continue, a happy family shall stand broken. Apart from above, the Apex Court in the cases of (1) K. Dhandapani (Supra), (ii) Mafat Lal Vs. State of Rajasthan (Supra) and (iii). Shriram Urav (Supra) has also held that where an accused has solemnized marriage with the prosecutrix then in such circumstance it is desirable not to prolong the criminal prosecution of such an accused as Court cannot turn a blind eye to the subsequent developments, which have taken place between the parties. No exception regarding aforementioned judgments can be carved out in the case of present applicant.

14. In view of the discussion made above, the present application succeeds and is liable to be allowed.

15. It is, accordingly, allowed.

16. The entire proceedings in Sessions Trial No. 90 of 2016 (State Vs. Harish Chandra @ Gautam), arising out of Case Crime No. 0110 of 2016, under Sections 363, 366, 376 IPC, Police Station- Chaubeypur, District-Varanasi, now pending in the Court of Additional District Judge, Court No.-7, Varanasi are, hereby, quashed.

20. In the facts and circumstances of the case, parties shall bear their own costs. Order Date :- 21.4.2025 Vinay VINAY KUMAR High Court of Judicature at Allahabad

arising out of Case Crime No. 110 of 2016, Under Section 363, 366, 376 I.P.C. and Section 3/4 Prevention of Children From Sexual Offences Act, Police Station-Chaubeypur, District- Varanasi pending in the court of Additional District Judge, Court No. 7, Varanasi in pursuant to compromise dated 05.03.2025 (Annexure No.16) to this affidavit. It is, further prayed that this Hon'ble Court may kindly be pleased to stay the further proceeding of Case No. 90 of 2016 State Vs. Harish Chandra alias Gautam arising out of Case Crime No. 110 of 2016, Under Section 363, 366, 376 I.P.C. and Section 3/4 Prevention of Children From Sexual Offences Act, Police Station- Chaubeypur, District- Varanasi pending in the court of Additional District Judge, Court No. 7, Varanasi, during the pendency of present application before this Hon'ble Court, otherwise the applicants will suffer irreparable loss and injury. And/or to pass such other and further order which this Hon'ble Court may deem fit and proper under the circumstances of the case."

4. Learned counsel for applicant submits that though applicant is a named and charge sheeted accused and also facing trial before Court below, however, in view of the facts as have now emerged on record, the criminal prosecution of applicant cannot be sustained any further. As such, the present application is liable to be allowed and the impugned criminal proceedings pending against applicant before Court below are liable to be quashed by this Court.

5. In furtherance of aforesaid submission, the learned counsel for applicant submits that criminal prosecution of applicant was set in motion when an FIR dated 06.04.2016 was lodged by the first informant-opposite party-4 Smt. Meera (mother of the prosecutrix) and was registered as Case Crime No. 0110 of 2016, under Sections 363, 366 IPC, Police Station-Chaubepur, District- Varanasi. In the aforesaid FIR, applicant-Harish Chandra @ Gautam was nominated as named accused whereas few unknown boys were also arraigned as accused.

6. Subsequent to the aforementioned FIR, applicant solemnized marriage with the prosecutrix on 31.03.2016 in accordance with Hindu Rites and Customs. As such, the prosecutrix became the legally wedded wife of applicant. By reason of above, the prosecutrix started residing with applicant as his legally wedded wife. Bona-fide of the parties is further evident from the fact that marriage of the parties has been registered under the provisions of U.P. Marriage Registration Rules, 2017. Photo copy of the marriage registration certificate dated 28.04.2016 has been brought on record and is at page 30 of the paper book. On the above premise, the learned counsel for applicant submits that once the marriage of the parties has been registered under the relevant Rules then there is a statutory presumption with regard to valid and legal marriage of the parties. From the aforesaid wedlock, 3 children namely (1) Anushka (date of birth 03.12.2017), (2) Annu (date of birth 07.11.2021) and (3) Payal (date of birth 19.11.2023) were born. Their birth certificates have also been brought on record and are at pages 38, 39 and 40 of the paper book respectively. As per the birth certificates of the children born out of the wedlock of applicant and the prosecutrix, applicant is shown as the father, whereas the prosecutrix is shown as the mother of the children. On account of aforementioned facts, parties amicably settled their dispute outside the Court. On the basis of settlement by the parties, a compromise was entered into. Subsequently, the terms of the compromise were reduced to writing. Thereafter, a compromise deed dated 05.03.2025 was prepared and filed before Court below. On the above premise, the learned counsel for applicant thus submits that in view of aforementioned subsequent developments that have taken place, the criminality, if any, committed by applicant now stands washed of. In view of the subsequent developments as noted herein above, the chances of conviction of accused-applicant is not only remote but also bleak. As such, the resulting trial shall only entail loss of judicial time in a futile pursuit particularly when torrents of litigation drown the Courts with an unimaginable flood of dockets.

7. On the above conspectus, the learned counsel for applicant thus submits that no useful purpose shall now be served in prolonging the criminal prosecution of applicant. In case, the criminal prosecution of applicants is allowed to continue, a happy family shall stand broken.

8. Learned counsel for applicant has then invited the attention of Court to the judgments of Supreme Court in (1) K. Dhandapani Vs. State by the Inspector of Police, 2022 SCC OnLine SC 1056, (ii) Mafat Lal Vs. State of Rajasthan, (2022) 6 SCC 589 and (iii). Criminal Appeal No. 41 of 2024 (Shriram Urav Vs. State of Chhattisgarh) decided on 30.01.2025, wherein the Apex Court quashed the criminal prosecution of accused therein on the ground that the accused therein had solemnized marriage with the prosecutrix and further Court cannot turn a blind eye to the said development. It is thus urged by the learned counsel for applicant that since the present applicant has also solemnized marriage with the prosecutrix, as such, no exception can be carved out in the case of present applicant. Moreover, the subsequent developments, which have taken place between the parties are not liable to be ignored by this Court. On the cumulative strength of above, the learned counsel for applicant thus submits that present application is liable to be allowed by this Court.

9. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the present application. Learned A.G.A. contends that since the prosecutrix was a child within the meaning of the term 'child' as defined in the POCSO Act on the date of occurrence, therefore, the subsequent developments, if any, will not washed off the criminality committed by applicant as suggested by the learned counsel for applicant. Criminality alleged to have been committed by applicant is not private in nature but a crime against society. The prosecutrix was a young and innocent girl below 18 years of age on the date of occurrence. Applicant is guilty of dislodging the modesty of prosecutrix. Referring to the judgment of Supreme Court in State of Kerala VS. Hafsal Rahman N.R., Special Leave Petition (Criminal) Diary Nos. 24362 of 2021, the learned A.G.A. submits that the Apex Court in aforementioned judgment has itself provided that there can be no compromise in matters arising out of POCSO Act. As such, the compromise deed dated 05.03.2025 entered into by the parties, copy of which is on record as Annexure-16 to the affidavit, is of no consequence. As such, no interference is warranted by this Court in present application. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

10. On the other hand, Mr. Haidar Ali, the learned counsel representing opposite parties 4 the first informant and 5 the prosecutrix/victim does not oppose the present application. He submits that he has received instructions not to oppose the present application. According to the learned counsel representing opposite parties 4 and 5, it is now an admitted fact that to the parties applicant has solemnized marriage with the prosecutrix. From the said wedlock, 3 children namely (1) Anushka (date of birth 03.12.2017), (2) Annu (date of birth 07.11.2021) and (3) Payal (date of birth 19.11.2023) were born. On date, the prosecutrix along with her children is residing with applicant as a happy family. It is thus urged by the learned counsel representing opposite parties 4 and 5 that he cannot have any objection, in case, the present application is decided by this Court taking into consideration the aforesaid facts and circumstances.

11. However, the learned A.G.A. fairly submits that in view of the counter affidavit filed by opposite parties 4 and 5, he does not wish to file any counter affidavit in the matter.

12. Be that as it may, the crux of the matter is that applicant has solemnized marriage with the prosecutrix and from the said wedlock, three children have been born. The parties are living together as a happy family.

13. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. Haidar Ali, the learned counsel representing opposite parties 4 and 5 and upon perusal of record, this Court finds that the criminal prosecution of applicant commenced when an FIR dated 06.04.2016 was lodged by the first informant-opposite party-4 Smt. Meera (mother of the prosecutrix). However, subsequent to the aforementioned FIR, applicant solemnized marriage with the prosecutrix on 31.03.2016 in accordance with Hindu Rites and Customs. As such, the prosecutrix became the legally wedded wife of applicant. By reason of above, the prosecutrix started residing with applicant as his legally wedded wife. Bona-fide of the parties is further evident from the fact that marriage of the parties has been registered under the provisions of U.P. Marriage Registration Rules, 2017. Photo copy of the marriage registration certificate dated 28.04.2016 has been brought on record and is at page 30 of the paper book. Once the marriage of the parties has been registered under the relevant Rules then there is a statutory presumption with regard to the valid and legal marriage of the parties. Apart from above, the aforesaid wedlock, 3 children namely (1) Anushka (date of birth

03.12.2017), (2) Annu (date of birth 07.11.2021) and (3) Payal (date of birth 19.11.2023) were born. Their birth certificates have been brought on record and are at pages 38, 39 and 40 of the paper book. As per the birth certificates of the children born out of the wedlock of applicant and the prosecutrix, applicant is shown as the father, whereas the prosecutrix is shown as the mother of the children. In view of aforementioned subsequent developments that have taken place, the criminality, if any, committed by applicant now stands washed of. Furthermore, this Court finds that in view of the above-mentioend subsequent developments as noted herein above, the parties amicably settled their dispute and entered into a compromise. Subsequently, the terms of the compromise were reduced to writing by way of a compromise deed date d05.03.2025, copy of which is on record at page 79 of the paper book. Opposite parties 4 and 5 i.e. the first informant and the prosecutrix/victim has put in appearance in present application. They have filed their respective short counter affidavit but they have not opposed the present application. As such, there is nothing on record to doubt the marriage of the parties or the cohabitation of applicant and the prosecutrix as husband and wife. In view of above, this Court does not find any good ground to prolong the criminal prosecution of applicant. In view of the subsequent deveopments as noted herein above, the chances of conviction of accused-applicant is not only remote but also bleak. As such, the trial of applicant shall be the futile exercise. In view of above, the learned counsel for applicant is right in submission before this Court that in case, the criminal prosecution of applicant is allowed to continue, a happy family shall stand broken. Apart from above, the Apex Court in the cases of (1) K. Dhandapani (Supra), (ii) Mafat Lal Vs. State of Rajasthan (Supra) and (iii). Shriram Urav (Supra) has also held that where an accused has solemnized marriage with the prosecutrix then in such circumstance it is desirable not to prolong the criminal prosecution of such an accused as Court cannot turn a blind eye to the subsequent developments, which have taken place between the parties. No exception regarding aforementioned judgments can be carved out in the case of present applicant.

14. In view of the discussion made above, the present application succeeds and is liable to be allowed.

15. It is, accordingly, allowed.

16. The entire proceedings in Sessions Trial No. 90 of 2016 (State Vs. Harish Chandra @ Gautam), arising out of Case Crime No. 0110 of 2016, under Sections 363, 366, 376 IPC, Police Station- Chaubeypur, District-Varanasi, now pending in the Court of Additional District Judge, Court No.-7, Varanasi are, hereby, quashed.

20. In the facts and circumstances of the case, parties shall bear their own costs. Order Date :- 21.4.2025 Vinay VINAY KUMAR High Court of Judicature at Allahabad