Consent and marriage of the victim as grounds for quashing FIR and proceedings

JUDGMENT

Rajnish Bhatnagar, J. Long and short of the case is that the mother of the victim i.e. respondent no.2 herein lodged a missing complaint which stands registered as case FIR No. 429/2021 under Section 363 IPC, registered at P.S. Vasant Kunj. After more than 7 months, the investigating agency traced and recovered the daughter of the respondent no.2 i.e. petitioner no.2 herein along the petitioner no.1 from Uttar Pradesh and were brought to Delhi. Further, medical of petitioner no.2 was conducted and UTP was found negative and thereafter, on 13.07.2022, petitioner no.1 was arrested.

2. On 14.07.2022, the statement of petitioner no.2 under Section 164 Cr.P.C. was recorded wherein, she had categorically narrated and stated that she became friends with petitioner no.1 through Instagram and both were in love relationship. Petitioner no.2 further stated that she left her home in Delhi on 23.11.2021 on her own to meet petitioner no.1 at UP and whatever, has happened thereafter, was with her consent and no one forced her.

3. On 10.11.2022, after the petitioner no.1 was granted regular bail; being incarcerated for three months and both the petitioners got married and since then they are living happily as a married couple.

4. On 11.11.2022, charges under Sections 363/366/376 IPC and Section 6 POCSO Act 2012 were framed.

5. Hence, both the petitioners, by virtue of this petition, are seeking quashing of FIR No. 429/2021 under Section 363 IPC, registered at P.S. Vasant Kunj, and the proceedings emanating therefrom on the ground that they are married and living happily together as husband and wife in their matrimonial home.

6. Learned counsel for the petitioner submitted that the petitioner no.2 after attaining majority had married petitioner no.1 and had continued to show her willingness to stay with the petitioner no.1. Learned counsel further submitted that the petitioners are living together in harmony in matrimony and the possibility of a conviction is remote and continuation of criminal proceedings would cause oppression and prejudice to both the petitioners.

7. During the course of the arguments, learned counsel for the petitioner has drawn to attention of this court to the various judgments passed by the Hon'ble Supreme Court in S. Vardarajan Vs. State of Madras, 1965 SCR Vol. I pg. 243 and judgments passed by various High Courts in Jayaprakash Vs. The Inspector of Police, Chennai & othrs, Crl.O.P.No. 15269 of 2022 decided on 06.07.2022; S. Sathish Kumar Vs. State & anr., Crl.O.P. No. 7837/2022 decided on 27.04.2022 by Madras High Court; Court on its Own Motion (Lajja Devi Vs. State, 193(2012) DLT 619(FB), Para 51); Saurabh & anr Vs. State & othrs, Crl. M.C. No.5941/2019 decided on 25.11.2016; Kundan & anr Vs. State & ors., Crl.M.C. No. 27/2022 decided on 21.02.2022 by Delhi High Court.

8. In this instant case having exceptional circumstances it is necessary to look into the various legal precedents for adequate adjudication, in this regard, the Apex Court in the case of MafatLal and Another Vs. The State of Rajasthan, Criminal Appeal No.592 of 2022 (arising out of SLP (CRL.) no. 1806 of 2021) has held as under:

"6. The High Court although records all such facts, appears to have been swayed with the fact that the abductee was a minor at the time when she left her home and that the appellant had evaded the investigation and had been successful in keeping away from the process of law for several years. The High Court further proceeded on the assumption that the appellant had actually kidnapped/abducted the minor daughter of the complainant.

7. Before this Court, also the abductee has joined the accused as appellant No.2. Once again similar stand has been taken as was taken before the High Court. Both the appellants have filed separate affidavits. Appellant No.2 has specifically stated before the High Court as also before this Court that she had left her parental home on her own free volition. The appellants are married sin