AFR

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 2136 of 2026

Court No. - 81

HON'BLE VIVEK KUMAR SINGH, J.

1. Heard Sri Aftab Alam, learned counsel for the applicant, Sri Syed

Mohammad Muzammil Mahmood, learned counsel for opposite party no.2/

first informant and Sri Rabindra Kumar Singh, learned A.G.A. for State-

opposite party no.1.

2. The present application under Section 528 of B.N.S.S. has been filed for

quashing the cognizance/summoning order dated 15.02.2019 as well as the

entire proceedings of Special Session Trial No. 175 of 2019 (State of U.P.

Vs. Ekramul Dafali and others) arising out of Case Crime No. 434 of 2014,

under Sections 363, 366 of IPC and Section 7/8 of POCSO Act, Police

Station Sikanderpur, District Ballia, pending in the court of Special Judge

(POCSO Act), Court No. 8, Ballia.

3. The brief facts of the case are that the opposite party no.2/ first informant

has lodged the first information report on 25.07.2014 in respect of the

alleged incident dated 30.09.2013 by moving an application under Section

156(3) of Cr.P.C., which was registered as Case Crime No.434 of 2014,

under Sections 363, 366 IPC and Section 8 of POCSO Act at Police Station,

Sikanderpur, District Ballia, wherein allegation has been levelled by the

opposite party no.2/ first informant that her minor daughter, aged about 16

years, has been enticed away by the applicants on 30.09.2013 on 7:00 p.m.

4. During the course of investigation, the police recovered the victim and her

statement under Section 161 Cr.P.C. was recorded on 26.07.2014, wherein

she stated that she went with applicant no.1 on her own will and she was not

Versus

Counsel for Applicant(s) :Aftab Alam

Counsel for Opposite Party(s):G.A., Syed Mohammad Muzammil Mahmood

Ekramul Dafali And 4 Others

.....Applicant(s)

State Of U.P. And 3 Others

.....Opposite Party(s)

taken away by anybody. She was in love with the applicant no.1, which was

also known to neighbours. The victim was medically examined on

26.07.2014 and no mark of any injury was seen on her body (a copy of the

medical report has been appended at page-83 onwards of the application).

Thereafter, the victim was referred to the office of the Chief Medical Officer

for ascertaining her age and as per report of the Chief Medical Officer dated

07.08.2014, the victim was more than 18 years, according to radio logical

report. Thereafter, the victim was produced before the learned court

concerned for recording her statement under Section 164 Cr.P.C., wherein

she stated that she left her home on her own will in the month of September,

2013 and she solemnized her marriage with the applicant no.1 in October,

2013. No offence was committed with her by the applicant no.1 and her

mother lodged a false FIR. She lastly stated that she wanted to live with her

husband/ applicant no.1.

5. Considering the statements of the victim, the Investigating Officer

concluded the investigation and a final report was submitted by him on

27.08.2014. It was observed by the Investigating Officer in his final report

that the victim was having pregnancy of 7 months and she was a major girl.

6. The first informant did not file any protest petition against the submission

of the final report dated 27.08.2014, despite notice having been duly served

upon him by the concerned court. Thereafter, on 15.02.2019, the learned

Additional Sessions Judge, Ballia, on his own took cognizance of the

offence on the ground that the alleged crime was not merely against an

individual but also against the society at large. Consequently, the learned

Additional Sessions Judge rejected the final report submitted by the

Investigating Officer and proceeded against the applicants.

7. Being aggrieved vide summoning order dated 15.02.2019, the present

application under Section 528 BNSS has been preferred and laches have

been sufficiently explained by the applicants. It is prayed by the applicants

that entire proceedings of court concerned including the

cognizance/summoning order dated 15.02.2019 be quashed.

8. Learned counsel for the applicants submits that no offence is made out

against the applicants. It is contended that the victim has not levelled any

allegation against applicant no. 1 or his family members, i.e. applicant nos. 2

to 5. A perusal of the statements of the victim recorded under Sections 161

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and 164 Cr.P.C. does not disclose the commission of any offence. It is

further submitted that the victim was more than 18 years of age at the time

of the alleged incident. Applicant no. 1 and the victim solemnized their

marriage 12 years ago, and out of the said wedlock three children have born.

Most recently, a baby girl was born on 18.04.2024, and a copy of her birth

certificate has been appended at page-107 of the present application. It is

also submitted that earlier a baby girl was born on 01.05.2014 and a baby

boy was born on 17.02.2017. Copies of the Aadhaar Cards of the said

children have been appended at pages-105 and 106 of the application.

9. Learned counsel further submits that applicant no. 1 and the victim have

been residing together as husband and wife for the last 12 years, and the

victim has filed her affidavit in support of the present application. Apart

from the documentary proof relating to the children, a certificate evidencing

the solemnization of marriage between applicant no. 1 and the victim has

been appended at page-109 of the application.

10. Reliance is placed by the learned counsel for applicants on Juhi Devi vs.

State of Bihar and Others, 2005(13) SCC 376; Suhani and Another vs.

State of U.P. and Others, 2018 (3) AICLR 183 and this Court's decisions

in Reena vs. State of U.P., 2012 (2) ACR 2349; Shaheen Parveen and

Another vs. State of U.P. and Others, 2015(7) ADJ 713 and Sunil Tiwari

vs. State of U.P. and Another, (Application under Section 482 Cr.P.C.

No. 5471 of 2016), decided on 21.10.2016.

11. Learned counsel for opposite party no. 2 has put in appearance and has

not controverted the submissions advanced by learned counsel for the

applicants. It is submitted that a compromise has been arrived at between the

contesting parties, and that applicant no. 1 and the victim are now parents of

three children and are living together happily as a married couple. Learned

counsel for opposite party no. 2/informant has stated that the prayer made by

the applicants may be allowed and the proceedings pending before the trial

court be quashed.

12. Per contra, learned A.G.A. has opposed the prayer made by learned

counsel for the applicants; however, he could not dispute the fact that the

marriage of the victim was solemnized with applicant no. 1 and that three

children were born out of the said wedlock. He has further admitted that no

allegation was levelled by the victim against the applicants in her statements

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recorded under Sections 161 and 164 Cr.P.C. with regard to the alleged

incident of kidnapping.

13. I have heard rival submissions of the parties and perused the records.

14. The Chief Medical Officer concerned has issued the age certificate of the

victim dated 07.08.2014, wherein it is mentioned that the victim was more

than 18 years of age. The victim in her statements recorded under Sections

161 and 164 Cr.P.C. did not level any allegation against the applicants. The

victim claimed herself to be a major girl and stated that she had gone with

the applicant no.1 voluntarily. She further stated that she had solemnized

marriage with the applicant no.1 in October, 2013. 

15. Under the facts and circumstances of the case, when the victim being

major, has herself disputed the facts stated in the FIR version, it cannot be

said that any offence under Sections 363, 366 IPC and Section 7/8 of

POCSO is made out. In addition to that, the victim had solemnized marriage

with the applicant no.1 twelve years ago and three children were born out of

the said wedlock. They are living in a happy married life for last 12 years.

The opposite party no.2/ informant has also not raised objection rather the

marriage of the applicant no.1 and victim has been accepted by her. If the

proceedings of the trial court is not quashed by this Court, the applicants and

the victim along with children would sustain legal injury.

16. The applicant no.1 is accused of committing an offence under Sections

363 and 366 of the IPC. Section 363 of the IPC provides that whoever

kidnaps any person from lawful guardianship shall be punished in terms of

sentence provided in the provision.

17. "Kidnapping from lawful guardianship" has been defined under Section

361 of the IPC. The provision when extracted reads as under:

"Whoever takes or entices any minor under *[sixteen] years of age if a

male, or under **[eighteen] years of age if a female, or any person of

unsound mind, out of the keeping of the lawful guardian of such minor or

person of unsound mind, without the consent of such guardian, is said to

kidnap such minor or person from lawful guardianship.

Explanation : The words "lawful guardian" in this section include any

person lawfully entrusted with the care or custody of such minor or other

person.

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Exception : This section does not extend to the act of any person who in

good faith believes himself to be the father of an illegitimate child, or who

in good faith believes himself to be entitled to the lawful custody of such

child, unless such act is committed for an immoral or unlawful purpose."

18. Section 366 of the IPC inheres that whoever kidnaps or abducts any

woman with intent that she may be compelled, or knowing it to be likely that

she will be compelled to marry any person against her will, or in order that

she may be forced or seduced to illicit intercourse, shall be punished with a

sentence, as provided in the provision. At the time of considering whether on

admitting the allegations made in the F.I.R., offence has been committed or

not, the ingredients of the offence are required to be considered in context of

the evidence collected during the course of investigation.

19. In the peculiar facts and circumstances of this case, the Court has

minutely examined the facts that have emerged on investigation of the case.

There is sufficient evidence on record to show that the prosecutrix has

attained the age of discretion, as also age of majority on the date of the

incident.

20. Somewhat similar facts came up for consideration before the Hon'ble

Supreme Court of India in Juhi Devi Versus State of Bihar and Others,

reported in (2005) 13 SCC 376, where Hon'ble Supreme Court observed

that prosecutrix who has attained the age of discretion, has a right to enjoy

her liberties by virtue of constitutional guarantee. The relevant para is quoted

below :--

"2. The petitioner herein is alleged to have married another person of her

age and the 5th respondent herein, the father of the petitioner, objected to

the said marriage. It seems that the petitioner had eloped with that person

and the father of the petitioner-5th respondent, has filed a complaint and

the petitioner was produced before the C.J.M., Patna. The petitioner

claims that she was major and voluntarily left with her husband. The

father of petitioner alleged that the petitioner was a minor and the

question of age was referred to a Medical Board. The Medical Board

opined that as on 17.05.2003, the petitioner must have been aged between

16 and 17 years. However, the father of the petitioner produced two

certificates before the Revisional Court and contended that her date of

birth is 12.10.1985 and she has not attained majority. However, the

medical report shows that she must have been aged more than 16 years,

even on 17.05.2003. Having regard to these facts, we are of the view that

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she must have attained majority and her stay at the remand home would

not be in the interest of justice and we think that her continued stay at the

remand home would be detrimental and she would be in a better

environment by living with the person whom she had allegedly married.

(Emphasis supplied)

21. A Division Bench of this Court in Smt. Reena Versus State of U.P. and

Others (Habeas Corpus Writ Petition No. -10180 of 2012) decided on

24.5.2012 observed that in pure and simple case of elopement of prosecutrix

it is to be seen that her right to enjoy her liberties by virtue of the

constitutional guarantees are not curtailed or encroached upon. The relevant

paragraphs of the judgment are quoted below:-

"We find from facts of the case that it was a pure and simple case of

elopement of petitioner, Smt. Reena with Rabdullah and the petitioner,

thereafter went straight away to his house from where she appears

recovered. There was some dispute in respect of the age of the girl but we

find from argument appearing at page 20 of the present petition that the

Chief Medical Officer, Maharajganj had assessed her 18 years of age.

Thus, the lady was undisputedly above 18 years of age, if we add three

years to the medically assessed age. In our considered view in case of

being a conflict between the age recorded in any school document and

that assessed by the doctor then only for the present purposes, the court

should lean towards acting upon the opinion of the doctor furnished after

carrying out scientific tests to assess the age of a victim. This is necessary

as liberty of a person has to be protected. No person could be deprived of

his liberty unless reasonable procedure has been adopted. Medical

opinion on age may not be exact, but it is generally acceptance and it is

based on scientific method of assessing the age. As such, inspite of there

being some sort of margin in assessing the age and actual age, there

could be chances that the assessed age is almost exact.

We have already noted that the personal liberty of a person should be

paramount consideration in such cases and keeping that in view and for

protecting the personal liberty of a person, the court should lean towards

considering the medical age than to consider the age which is recorded in

school documents. Besides, there is no dispute in the fact that the

petitioner, Smt. Reena had eloped with Rabdullah on 3-3-2011 and had

wet into his house and was living there. ...Under the present set of facts,

there could not be any doubt that it is a simple and pure case of

elopement and as such no offence or offences could be said to be

constituted under the admitted facts.

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...There is no age, as regards the personal liberty of a person. Anyone

who is born as a human being and who is found living in India even if he

is not an Indian, has a right to enjoy his or her liberties by virtue of the

constitutional guarantees. Any order which curtails or encroaches upon

the liberties of such a person and has always to be held falling short of

the constitution requirements and safeguards and, as such, we have to

struck down the same in exercise of the powers Under Article 226 of the

Constitution of India. "

(Emphasis supplied)

22. In the instant case, the point for consideration is whether the applicant

no.1 has committed offence in context of the victim or not. It will be

appropriate here to mention the judgement dated 23.07.2015 of this Court

passed in Writ Petition No. 3519(MB) of 2015 (Shaheen Parveen and

Another Vs. State of U.P. through Principal Secretary, Home

Department, and Others), where this Court observed that a girl who has

attained the age of discretion and was on the verge of attaining majority and

is capable of knowing what was good and what was bad for her, cannot be

said to be a victim of inducement, particularly when the case of the

victim/girl herself is that it was on her initiative and on account of her

voluntary act that she had gone with the boy and got married to him. In such

circumstances, desire of the girl/victim is required to be seen. Ingredients of

Section 361 of the I.P.C. are required to be considered accordingly, and not

in mechanical or technical interpretation. In this case the Charge sheet under

Sections 363 and 366 of the IPC, was quashed where the prosecutrix was

found to have attained the age of discretion and was just below 17 years of

age. The prosecutrix gave the statement that she was neither kidnapped nor

abducted who went in the company of the accused, willingly and knowingly.

She has been living with petitioner No. 2 as his wife and was an expecting

mother carrying a pregnancy of 31 weeks. This Court quashed the Charge

sheet observing that substantial justice cannot be sacrificed at the altar of

technicality. The relevant paragraphs are quoted below:-

"18. Petitioner No. 1 the victim/prosecutrix would be the best witness,

rather the only witness of commission of offence under Sections 363/366

of the IPC. Surely, the victim will not support the prosecution case, as has

been made evident by her in her statement, recorded in the course of

investigation under Section 164 Cr.P.C., and therefore the trial would

result in acquittal. During course of trial, considerable number of man

hours would be wasted in prosecution/ defending and judging the case.

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No useful purpose would be served and the entire exercise of trial would

be in futility because the victim has declared that she was not victimised

or kidnapped.

19. The facts that have emerged from the record make it evident that the

impugned criminal proceedings have been initiated because mother of the

Prosecutrix/victim (respondent No. -4) has not accepted the marriage of

her daughter with petitioner No. 2.

20. In case, despite the evidence that has come on record, as noted above,

proceedings are not quashed, petitioner No. -2 would be required to face

criminal charges and undergo the agony of a trial.

21. We have also taken into account the fact that in case the petitioner

No. 2 is allowed to be prosecuted, the matrimonial life of petitioner No.

1/the alleged victim would be disrupted. Her husband would be

incarcerated and there would be no one to take care of her child, who is

yet-to-be-born.

22. If a minor, of her own, abandons the guardianship of her parents and

joins a boy without any role having been played by the boy in her

abandoning the guardianship of her parents and without her having been

subjected to any kind of pressure, inducement, etc and without any offer

or promise from the accused, no offence punishable under Section 363

I.P.C. will be made out when the girl is aged more than 17 years and is

mature enough to understand what she is doing.Of course, if the accused

induces or allures the girl and that influences the minor in leaving her

guardian's custody and the keeping and going with the accused, then it

would be difficult for the Court to accept that minor had voluntarily come

to the accused. In case the victim/prosecutrix willingly, of her own

accord, accompanies the boy, the law does not cast a duty on the boy of

taking her back to her father's house or even of telling her not to

accompany him.

27. The writ Court considering totality of fact and circumstances, cannot

ignore or disregard the welfare of the petitioners, particularly when the

exercise of trial is going to be in futility, as observed hereinabove.

28. In view of the facts and circumstances of the case noted above, the

Court is convinced that the impugned proceedings have been initiated in

abuse of process of the Court and process of the law. A personal grudge

against marriage of choice of the daughter is being settled by virtue of

initiating impugned criminal proceedings, which would not be

permissible in law. Such prosecution would abrogate constitutional right

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vested in the petitioners to get married as per their discretion,

particularly when there is no evidence to indicate that the marriage is

void.

29. The stand of the Prosecuting Agency that the victim was a few months

below age of majority when she joined the company of the

accused/petitioner No. 2, and therefore offence has been committed,

cannot be accepted if ground reality is taken into account. It has come on

record that the prosecutrix is an expecting mother and is carrying a

pregnancy of 31 weeks. Coupled with this fact is the statement of the

prosecutrix wherein she has said that she was neither kidnapped nor

abducted, rather has been living with petitioner No. 2 as his wife. It is the

prosecutrix who went in the company of the accused, willingly,

knowingly, and rather than the accused taking the prosecutrix out of the

custody of the lawful guardian; the victim herself had eloped with

petitioner No. 2. In the considered opinion of the Court, substantial

justice cannot be sacrificed at the altar of technicality, as is being

concluded by the Investigating Agency.

30. In view of above, petitioner No. 2 cannot be said to have committed

offence either under Section 363 I.P.C. read with Section 361 I.P.C. or

under Section 366 I.P.C."

(Emphasis supplied)

23. The Honble Apex Court in the case of S.Varadarajan vs. State of

Madras, reported in AIR1965 SC 942, has interpreted the meaning of

Section 361 of the IPC and has held that if the victim had voluntarily joined

the accused then in such case it could not be said that the accused had taken

her away from the protection of lawful guardian within the meaning of

Section 361 of the Code. The judgment of S.Varadarajan (supra) is

reproduced in its entirety.

"11. It must, however, be borne in mind that there is a distinction between

"taking" and allowing a minor to accompany a person. The two

expressions are not synonymous though we would like to guard ourselves

from laying down that in no conceivable circumstance can the two be

regarded as meaning the same thing for the purposes of section 361 of the

Indian Penal Code. We would limit ourselves to a case like the present

where the minor alleged to have been taken by the accused person left her

father's protection knowing and having capacity to know the full import of

what she was doing voluntarily joins the accused person. In such a case

we do not think that the accused can be said to have taken her away from

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the keeping of her lawful guardian. Something more has to be shown in a

case of this kind and that is some kind of inducement held out by the

accused person or an active participation by him in the formation of the

intention of the minor to leave the house of the guardian.

12. It would, however, be sufficient if the prosecution establishes that

though immediately prior to the minor leaving the father's protection no

active part was played by the accused, he had at some earlier stage

solicited or persuaded the minor to do so. In our, opinion if evidence to

establish one of those things is lacking it would not be legitimate to infer

that the accused is guilty of taking the minor out of the keeping of the

lawful guardian merely because after she has actually left her guardian's

house or a house where her guardian had kept her, joined the accused

and the accused helped her in her design not to return to her guardian's

house by taking her along with him from place to place. No doubt, the

part played by the accused could be regarded as facilitating the

fulfillment of the intention of the girl. That part, in our opinion, falls short

of an inducement to the minor to slip out of the keeping of her lawful

guardian and is, therefore, not tantamount to "taking".

Whatever may be the position with respect to an offence under that,

section and even assuming that a minor cannot in law abandon the

guardianship of her lawful guardian, for the reason which we have

already stated, the accused person in whose company she is later found

cannot be held guilty of having taken her out of the keeping of her

guardian unless something more is established.

After pointing out that there is an essential distinction between the words

"taking" and "enticing" it was no doubt observed that the mental attitude

of the minor is not of relevance in the case of taking and that the word

"take" means to cause to go, to escort or to get into possession. But these

observations have to be understood in the context of the facts found in

that case. For, it had been found that the minor girl whom the accused

was charged with having kidnapped had been persuaded by the accused

when she had gone out of her house for answering the call of nature, to

go along with him and was taken by him to another village and kept in his

uncle's house until she was restored back to her father by the uncle later.

Thus, here there was an element of persuasion by the accused person

which brought about the willingness of the girl and this makes all the

difference. In our opinion, therefore, neither of these decisions is of

assistance to the State.

We are satisfied, upon the material on record, that no offence under

section 363 has been established against the appellant and that he is,

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therefore, entitled to acquittal. Accordingly we allow the appeal and set

aside the conviction and sentence passed upon him."

24. The Apex Court in the case of Shriram Urav Vs. State of Chhattisgarh

in Criminal Appeal No(S). 41/2021, decided on 10.01.2025, also quashed

the conviction as well as the sentence imposed upon the appellant on the

ground that the appellant/accused and the complainant/victim had married

each other.

25. Similarly, in the case of Dasari Srikant vs. State of Telangana

reported in (2024) SCC OnLine SC 936, wherein, under identical

circumstances and almost identical provisions the Hon'ble Supreme Court

quashed the proceedings instituted against the accused therein. The relevant

paragraph 8 to 10 of the Dasari Srikant (supra) read as under:-

"8. Since, the appellant and the complainant have married each other, the

affirmation of the judgment rendered by the High Court would have the

disastrous consequence on the accused appellant being sent to jail which

in turn could put his matrimonial relationship with the complainant in

danger.

9. As a consequence, we are inclined to exercise the powers under Article

142 of the Constitution of India for quashing the conviction of the

accused appellant as recorded by the learned trial Court and modified by

the High Court. 10. As a result, the impugned judgment dated 27th June,

2023 passed by the High Court and judgment dated 9th April, 2021

passed by the trial Court are hereby quashed and set aside."

26. In another judgment of Mahesh Mukund Patel vs. State of U.P. and

Others, reported in 2025 SCC OnLine SC 614, the Hon'ble Supreme Court

quashed the proceedings of offence, punishable under Section 354A, 363,

366, 376 of the IPC and Section 3 and 4 of the POCSO Act on the ground of

marriage between the accused and the victim. It was brought on record that

from the wedlock between the accused and the victim, two children were

born, whose documents were produced alongwith the appeal. The Apex

Court in this case quashed the proceedings on the ground that no purpose

would be served by continuing the prosecution as it would cause undue

harassment to the appellant/accused and the victim and their children.

27. The Supreme Court in another judgment of Madhukar and Others vs.

The State of Maharashtra and Another, arising out of SLP (Criminal) No.

7212 of 2025, alongwith Prabhakar vs. The State of Maharashtra and

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Another, arising out of SLP (Criminal) No. 7495 of 2025, quashed the

proceedings of case crime no.302 of 2023, dated 20.11.2023, under sections

324, 141, 143, 147, 149, 452, 323, 504 and 506 of the IPC as well as

quashed the proceedings of case crime no.304 of 2023, dated 21.11.2023,

under sections 376, 354-A, 354-D, 509 and 506 IPC on the basis of

compromise between the parties. Paragraph nos.6, 7 and 8 of the said

judgment are reproduced herein:-

"6. At the outset, we recognise that the offence under Section 376 IPC is

undoubtedly of a grave and heinous nature. Ordinarily, quashing of

proceedings involving such offences on the ground of settlement between

the parties is discouraged and should not be permitted lightly. However,

the power of the Court under Section 482 CrPC to secure the ends of

justice is not constrained by a rigid formula and must be exercised with

reference to the facts of each case.

7. In the present matter, we are confronted with an unusual situation

where the FIR invoking serious charges, including Section 376 IPC, was

filed immediately following an earlier FIR lodged by the opposing side.

This sequence of events lends a certain context to the allegations and

suggests that the second FIR may have been a reactionary step. More

importantly, the complainant in the second FIR has unequivocally

expressed her desire not to pursue the case. She has submitted that she is

now married, settled in her personal life, and continuing with the

criminal proceedings would only disturb her peace and stability. Her

stand is neither tentative nor ambiguous, she has consistently maintained,

including through an affidavit on record, that she does not support the

prosecution and wants the matter to end. The parties have also amicably

resolved their differences and arrived at a mutual understanding. In these

circumstances, the continuation of the trial would not serve any

meaningful purpose. It would only prolong distress for all concerned,

especially the complainant, and burden the Courts without the likelihood

of a productive outcome.

8. Therefore, having considered the peculiar facts and circumstances of

this case, and taking into account the categorical stand taken by the

complainant and the nature of the settlement, we are of the opinion that

the continuation of the criminal proceedings would serve no useful

purpose and would only amount to abuse of process."

28. The facts of the present case are very similar to the above judgments.

Here also I find that the victim has not at all supported the prosecution

version instead according to her she voluntarily went with the applicant no.1

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on the date of alleged offence. Thereafter, she married him. Therefore, by no

stretch of imagination, it can be said that no offence under Sections 363 and

366 of the IPC read with Section 7/8 of the POCSO Act has been made out.

The police have not submitted chargesheet in this case but the learned court

concerned summoned the applicant in a mechanical manner without due

application of mind and unfortunately the trial court has not considered the

matter in correct perspective. Secondly, the question arises here as to

whether the proceedings of criminal case under section 363 and 366 of the

IPC and 7/8 of the POCSO Act can be quashed by the High Court in the

Application under Section 482 Cr.P.C. or 528 BNSS, if the parties have

settled their dispute amicably and are living as husband and wife for a long

period and a child was born out of wedlock.

29. The Apex Court in the case of K. Dhandapani Vs, The State by the

Inspector of Police, 2022 SCC onLine SC 1056 and Mafat Lal and

Others vs. The State of Rajasthan, 2022 SCC OnLine SC 433, also

quashed the proceedings against the accused therein on the grounds that the

accused had solemnized marriage with the prosecutrix and secondly, the

court cannot turn a blind eye to the said fact. Since the judgement rendered

by Apex Court in the case of K. Dhandapani (supra) is a short one, therefore,

the same is reproduced in its entirety:

"Leave granted.

The appellant who is the maternal uncle of the prosecutrix belongs to

Valayar community, which is a most backward community in the State of

Tamilnadu. He works as a woodcutter on daily wages in a private factory.

FIR was registered against him for committing rape under Sections

5(j)(ii)read with Section 6, 5(I) read with Section 6 and 5(n) read with

Section 6 of Protection of Child from Sexual Offences (POCSO) Act,

2012. He was convicted after trial for committing the said offences and

sentenced to undergo rigorous Reason: imprisonment for a period of 10

years by the Sessions Judge, Fast Track Mahila Court, Tiruppur on

31.10.2018. The High Court, by an order dated 13.02.2019, upheld the

conviction and sentence. Aggrieved thereby, the appellant has filed this

appeal.

Mr. M.P.Parthiban, learned counsel appearing for the appellant,

submitted that allegation against him was that he had physical relations

with the prosecutrix on the promise of marrying her. He stated that, in

fact, he married the prosecutrix and they have two children.

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The appellant submitted that this Court should exercise its power under

Article 142 of the Constitution and ought to do complete justice and it

could not be in the interest of justice to disturb the family life of the

appellant and the prosecutrix.

After hearing the matter for some time on 08 th March, 2022, we directed

the District Judge to record the statement of the prosecutrix about her

present status. The statement of the prosecutrix has been placed on

record in which she has categorically stated that she has two children

and they are being taken care of by the appellant and she is leading a

happy married life.

Dr. Joseph Aristotle S., learned counsel appearing for the State, opposed

the grant of any relief to the appellant on the ground that the prosecutrix

was aged 14 years on the date of the offence and gave birth to the first

child when she was 15 years and second child was born when she was 17

years. He argued that the marriage between the appellant and the

prosecutrix is not legal. He expressed his apprehension that the said

marriage might be only for the purpose of escaping punishment and there

is no guarantee that the appellant will take care of the prosecutrix and the

children after this Court grants relief to him.

In the peculiar facts and circumstances of this case, we are of the

considered view that the conviction and sentence of the appellant who is

maternal uncle of the prosecutrix deserves to be set aside in view of the

subsequent events that have been brought to the notice of this Court. This

Court cannot shut its eyes to the ground reality and disturb the happy

family life of the appellant and the prosecutrix. We have been informed

about the custom in Tamilnadu of the marriage of a girl with the maternal

uncle.

For the aforesaid mentioned reasons, the conviction and sentence of the

appellant is set aside in the peculiar facts of the case and shall not be

treated as a precedent. The appeal is accordingly, disposed of. Pending

application(s), if any, shall stand disposed of.

In case, the appellant does not take proper care of the prosecutrix, she or

the State on behalf of the prosecutrix can move this Court for

modification of this Order."

30. The ratio laid down by Apex Court in aforementioned judgements is

squarely applicable to the facts of the present case. As such, no exception

can be carved out in the case of present applicants with reference to the

aforementioned judgements of Supreme Court inasmuch as the applicant

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no.1 has also solemnized marriage with the prosecutrix and the parties are

happily living together. On the above conspectus, the learned counsel for

applicants submits that the criminal prosecution of applicants cannot be

sustained in law as well as fact and therefore, the same is liable to be

quashed by this Court.

31. Be that as it may, the crux of the matter is that the parties have

solemnized marriage and they are living together as husband and wife and

three children were born out of their wedlock. The prosecutrix is now

residing with the applicant no.1 as his legally wedded wife, no such material

has been brought on record on the basis of which the marriage of the parties

could be doubted. In view of the subsequent development, the criminality, if

any, committed by the applicants now stands washed off. As such, no useful

purpose would be served in prolonging the criminal prosecution of the

applicants. On account of the facts as noted above, the chances of conviction

of the applicants are now not only remote but also bleak. As such, in case the

criminal prosecution of the applicants is allowed to continue, a happy family

comprising of applicant no.1 and the prosecutrix shall stand broken. The trial

would only entail loss of judicial time in a futile pursuit particularly when

torrents of litigation drown the courts with an unimaginable flood of dockets.

32. In my considered opinion, no offence is made out under sections 363 and

366 of the IPC and Section 7/8 POCSO Act since the victim has not levelled

any allegation against the applicants in relation to the aforementioned

sections inasmuch as the victim at no point of time stated that she was

sexually assaulted by the applicants. Therefore, the basic ingredients to

constitute an offence punishable under section 7/8 POCSO Act are missing.

Contrary to this, the victim has solemnized marriage with the applicant no.1

and three children were born out of the wedlock and they are living a happy

married life for the last several years and the opposite party no.2/first

informant has also entered into settlement agreement. If the proceedings of

the trial court is not quashed by this Court, the applicant no.1 and the victim

alongwith the children may sustain legal injury and the case of the applicants

is squarely covered with the cases mentioned hereinabove.

33. In view of the discussion made herein above, the present application

succeeds and is liable to be allowed. It is accordingly allowed.

34. The entire proceedings of Special Session Trial No. 175 of 2019 (State

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of U.P. Vs. Ekramul Dafali and others) arising out of Case Crime No. 434 of

2014, under Sections 363, 366 of IPC and Section 7/8 of POCSO Act, Police

Station Sikanderpur, District Ballia, pending in the court of Special Judge

(POCSO Act), Court No. 8, Ballia as well as cognizance/summoning order

dated 15.02.2019, are hereby quashed.

35. No order as to costs. 

36. I would like to put in a word of appreciation for my Research Associate

Ms. Priyanshi Hirwani, for her dexterity in research and superlative

assistance in drafting of this judgment. 

(Vivek Kumar Singh,J.)

February 6, 2026

Radhika

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