JITENDER KUMAR AND OTHERS vs STATE OF HP AND OTHERS

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IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
High Court of H.P.
Cr.MMO No.1015 of 2026
Reserved on 29.10.2026
Decided on 03.11.2026
Uploaded on : 03.11.2026
Jitender Kumar and Ors. …Petitioners

Versus
State of H.P. & Ors. …..Respondents
Coram:
The Hon’ble Mr. Justice Chirag Bhanu Singh, Judge.
1
Whether approved for reporting? Yes
For the Petitioners : Mr. Divya Raj Singh, Advocate.
For the Respondents : Mr. Rajpal Thakur, Additional
Advocate General, for respondent
No.1.
Mr. Anurag, Advocate, for
respondents No.2 and 3.
__________________________________________________________
Chirag Bhanu Singh, Judge
The petitioners have invoked the inherent powers of
this Court, under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (hereinafter referred to as the ‘ BNSS’),
for quashing FIR No.59 of 2024, dated 03.12.2024, registered
under Sections 65(1) of Bharatiya Nyaya Sanhita (hereinafter
referred to as the BNS), Sections 363, 366 of the Indian Penal
Code (hereinafter referred to as the 'IPC') and Sections 6, 21 of
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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the Protection of Children from Sexual Offences Act, 2012
High Court of H.P.
(hereinafter referred to as the POCSO Act), at Women Police
Station, District Chamba, H.P., on the basis of the compromise
effected inter se the parties.
2. Briefly, stated the facts of the case, as emerging on
the record are that on 03.12.2024 the complainant-Kapil Dev
Sharma, (Coordinator of the Child Welfare Helpline) had
informed the police that one minor girl had been brought to the
hospital at Chamba for delivery. The father of the minor Tej
Singh had also met the complainant. On inquiry, it was
disclosed to the complainant that his minor daughter was
residing with one Jitender Kumar (petitioner No.1) and his
mother had telephonically informed the father of Jitender
Kumar that the minor was in pain and had to be rushed for
delivery to the hospital. The families of both the minor and
petitioner No.1- Jitender Kumar had reached the hospital at
Tissa from where she had been referred to Chamba.
3. Based on the aforesaid information, the aforesaid
FIR had come to be registered. The petitioners have
approached this Court alleging that the minor victim was the
legally wedded wife of the petitioner No.1-Jitender Kumar. The
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victim was in fact a minor and had solemnized marriage with
High Court of H.P.
the petitioner No.1-Jitender Kumar of her own volition and that
too with the concurrence of their parents. Since then, she had
been residing with petitioner No.1, as his wife. Thereafter, she
had conceived and had been rushed to the hospital for
delivering the child. The attending doctor assuming that the
victim was less then 18 years old girl had informed the police
hence, the present FIR.
4. It is further averred by the petitioners that even at
the time of registration of the FIR, the victim was not a minor.
Even after the birth of the newly born, all the petitioners and
the victim are residing together. Even in her statement
recorded under Section 164 of Cr.P.C., the victim had got her
age recorded as 17 years. Even while appearing as PW-1, the
victim has stated her date of birth as 23.06.2005.
5. The parties have of their own volition entered into a
compromise placed on record as Annexure P-3. They are not
only married, but do not want to carry on with the case. It may
rather result into un-pleasantness and the breakdown of their
marriage.
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6. Besides the aforesaid averments, the petitioner No.1-
High Court of H.P.
Jitender Kumar and the victim had appeared in this Court on
15.10.2026. The petitioner No.1-Jitender Kumar had
categorically deposed that he had married the victim in the
year 2024. On 03.12.2024 she had gone to the Civil Hospital
Chamba for the delivery of her child and the aforesaid FIR
came to be registered against him, his father, his mother and
his sister. Nonetheless he has again entered into a
compromise with the victim voluntarily. So is the statement of
the victim, who has also categorically deposed that she had
married the petitioner No.1-Jitender Kumar in the year 2024. A
daughter had been born to them in December, 2024. She had
been residing with her husband since their marriage. On
03.12.2024, she had gone to the hospital to deliver a child and
during the course of delivery, the aforesaid FIR came to be
registered against her husband and her in-laws. She has
entered into a compromise and does not wish to pursue the FIR
any further.
7. Having heard the learned counsel appearing for the
parties and after having gone through the statements of the
purported victim and the petitioner, the important question
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which arises for consideration is whether the FIR in question
High Court of H.P.
can be quashed more particularly, keeping in view the caveat
that while exercising the inherent powers under Section 528 of
the BNSS, (Section 482 of Cr.P.C.), though this Court can
indeed quash the proceedings, but having due regard to the
nature and gravity of the crime and its impact on the society at
large. Generally, heinous offences of mental depravity, murder,
rape, dacoity etc. may not come within the purview of the
same. In that sense only offences arising from commercial,
financial, mercantile and civil partnership, matrimonial or
family disputes, where the wrong is basically private or
personal in nature may be given a quietus, exercising such
powers.
8. However, the proceedings can still be quashed by
this Court while exercising powers under Section 528 of BNSS,
if it tantamounts to the abuse of the process of law. The
aforesaid proposition already stand answer by the Hon’ble
Supreme Court in no uncertain terms in
Gian Singh versus
State of Punjab & Anr. (2012) 10 SCC 303.
9. No doubt, the offence alleged in the present FIR, falls
in the category of heinous crimes, as the FIR stands registered
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under Section 65(1) of the BNS, Sections 363, 366 of the IPC
High Court of H.P.
and Sections 6, 21 of the POCSO Act, but strangely what has
emerged on record is that the victim had purportedly married
the petitioner No.1/accused in the year 2024 itself. Not only
had they solemnized marriage, which was also in the
knowledge of the families of the two, but the victim has also
delivered a baby. The victim as per her own deposition has
categorically stated that she has been residing with the
petitioner No.1/accused since their marriage and on
03.12.2024 she had gone to the hospital to deliver a child.
10. Undisputedly, both the victim/prosecutrix and the
petitioner No.1/accused-Jitender Kumar are married. They
have also been blessed with a child. As per the statement of
the doctor, the victim was found to be a minor though she has
herself stated her date of birth as 23.06.2005. Even in her
statement recorded under Section 164 of Cr.P.C., the victim
had got her age recorded as 17 years.
11. Seemingly, the FIR came to be registered mainly on
the basis of a report submitted by the doctor. Even assuming
that the accused had married a minor it at best entailed action
against him only under the provisions of The Prohibition of
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Child Marriage Act, 2006. However, under what circumstances
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the POCSO Act came to be attracted is hard to fathom. The
doctor had only reported that the prosecutrix, who was less
than 17 years of age had delivered a baby boy. The bare
perusal of the report filed by the doctor does not remotely
suggest that an offense under the POCSO Act had been
reported by the doctor or the prosecutrix had disclosed
anything about such an offence having been committed by
petitioner or someone else against her.
12. Nonetheless, apparently keeping in view the
provisions of Sections 19 and 21 of the POCSO Act, the doctor
had reported the matter that the victim, who had come to
deliver a child was below 18 years. He just informed the police.
It apparently resulted in the registration of the present FIR.
13. No doubt Section 19 of the POCSO Act, inter alia ,
provides that an offense committed under this Act shall be
informed to the Special Juvenile Police Unit or the local police,
and any person, who fails to report the commission of an
offense under Sub-section (1) of Section 19 has been held liable
for punishment, but that in any eventuality, would not mean
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that a person, who has come to deliver a child, if she happens
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to be a minor, would in itself constitute an offense at least
under the POCSO Act.
14. It would be apposite to reproduce Section 19 of the
Act, which reads thus;
“19.Reporting of offences.— (1) Notwithstanding
anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974) any person (including the
child), who has apprehension that an offence under
this Act is likely to be committed or has knowledge
that such an offence has been committed, he shall
provide such information to,—
(a) the Special Juvenile Police Unit; or
(b) the local police.
(2) Every report given under sub-section (1) shall be—
(a) ascribed an entry number and recorded in
writing;
(b) be read over to the informant;
(c) shall be entered in a book to be kept by the
Police Unit.
(3) Where the report under sub-section (1) is given by a
child, the same shall be recorded under sub¬section
(2) in a simple language so that the child understands
contents being recorded.
(4) In case contents are being recorded in the language
not understood by the child or wherever it is deemed
necessary, a translator or an interpreter, having such
qualifications, experience and on payment of such
fees as may be prescribed, shall be provided to the
child if he fails to understand the same.
(5) Where the Special Juvenile Police Unit or local
police is satisfied that the child against whom an
offence has been committed is in need of care and
protection, then, it shall, after recording the reasons
in writing, make immediate arrangement to give him
such care and protection including admitting the
child into shelter home or to the nearest hospital
within twenty-four hours of the report, as may be
prescribed.
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(6) The Special Juvenile Police Unit or local police
shall, without unnecessary delay but within a period
of twenty-four hours, report the matter to the Child
Welfare Committee and the Special Court or where no
Special Court has been designated, to the Court of
Session, including need of the child for care and
protection and steps taken in this regard.
High Court of H.P.
(7) No person shall incur any liability, whether civil or
criminal, for giving the information in good faith for
the purpose of sub-section (1).”
15. The bare reading of the Section would suggest that what
has to be reported is the apprehension of an offence or an offence
having been committed under the Act, or a person, who had
knowledge that such an offence has been committed under the Act.
Sub-section (3) of Section 19 clearly provides that where a report
under Sub-section (1) is given by a child, the same shall be recorded
under Sub-section (2) in a simple language, so that even the child
understands the content of the same.
16. It is thus crystal clear that non-reporting would become
an offense only if a sexual assault in any form if reported by the
child and despite reporting an assault, if the doctor or any other
person, who has knowledge of the same fails to inform the police,
would result in the invocation of the provisions of Sections 19 and
21 of the Act. The legislature never intended it to mean that a
minor, who has gone to deliver a child, should he charged under the
provisions of the POCSO Act.
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17. It would be a travesty of justice if a person who has gone
High Court of H.P.
to get his child delivered is arrested for an offence under POCSO,
even if his wife is a minor. It could not have been the intention of
the legislature, and nor it is. Section 19 of the POCSO itself
suggests that the victim has to report a sexual offence and it is only
if reported and the doctor or the person informed does not respond,
the provisions of Section 19 come into play. Even in the case at
hand, the alleged victim (the wife) of the accused had not reported
any offence under the Act to the doctor. The doctor’s thus reporting
to the police that a minor had been admitted for delivering a child,
could not have per se attracted the provisions of the POCSO Act. At
best the accused husband could have been prosecuted under the
provisions of The Prohibition of Child Marriage Act, 2006. Section 9
of the said Act providing the penal consequences thereof.
18. The intent and the purpose behind Section 19 of the
POCSO Act only is that the sexual offences against minors don’t go
unreported.
19. The distinction can be gauged from the provisions of
Section 19 itself. The bare reading of sub-clause (1) to (3) clearly
demonstrates that it is only when a sexual assault on a minor goes
unreported, that Section 19 comes into play. It is not meant for a
situation where a married minor has gone to deliver a child. At best,
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in the aforesaid circumstances only the provisions of, The
High Court of H.P.
Prohibition of Child Marriage Act, 2006, could have been invoked by
the police. The report under Section 19 has also to be given by the
child and recorded thereupon before initiating any action by the
police. In the case at hand, the report has been made by the doctor
and the Counsellor of the child helpline and not the child.
20. Unfortunately, after the filing of the charge sheet, if any
change of circumstance is to be reported the learned trial Courts do
not take cognizance of it at the stage of framing of charges and
resultantly the High Courts are flooded with the petition under
Section 528 of BNSS (Section 482 of Cr.P.C.), oblivious of the fact
that there are sufficient powers with the learned trial Courts to take
cognizance of such change in circumstances at different stages
including at the stage of framing of charges. In these peculiar
circumstances even if a wife appears before the learned trial Court
after framing of charges and deposes that she happens to be the
married wife of the accused the learned trial Courts can and should
close the trial holding the same to be a case of no evidence,
exercising powers under Section 232 of Cr.P.C. (Section 255 of
BNSS).
21. For Section 232 acts as a statutory filter in session trials
to end a case prematurely when the prosecution completely fails to
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bring on record any incriminating evidence, sparing the accused not
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only from proving an unnecessary defence, but also to avoid
unnecessary harassment to the accused by calling upon him to
produce evidence and to avoid waste of public time and of course
the time of the Courts. Illustratively if the wife of the accused
appears before the Court and deposes clearly and categorically, it
would indeed be a case of "no evidence" and the trial Courts would
be well within their right to acquit the accused even after merely
recording the testimony of the wife. Seeing to the huge influx of
cases seeking quashment of FIRs under Section 528 of the BNSS
(Section 482 of Cr.P.C), time has come that the learned trial Courts
start taking cognizance of such changed circumstances either at the
time of framing charges or even by proactively calling for the
evidence of the prosecution and examining the prosecutrix i.e. the
wife and exercising powers under Section 232 (now 255 of BNSS)
acquitting the accused. The object of Section 232 even otherwise is
not only to expedite the conclusion of the trial but at the same time
avoid unnecessary harassment to the accused. If the trial Court
could take cognizance of such changed circumstances, the accused
would not have to rush to the High Courts for exercising their
inherent powers under Section 528 of BNSS.
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22. Nonetheless without adverting any further on the said
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aspect suffice it to say that it is a fit case to exercise the powers of
Section 528 of the BNSS and quashing the FIR. The victim while
appearing as her own witness as PW-1, has herself demolished the
very basis of the prosecution case. Therefore, there are no chances
of conviction of the petitioners. As such, even otherwise no fruitful
purpose would be served in case the FIR as well as consequent
proceedings are allowed to continue. It would otherwise be a
travesty of justice in case the petitioner is made to go through the
agony of trial that too for allegedly having sexually ravished his own
wife.
23. This Court would thus be well within its jurisdiction to
quash the criminal proceedings against the petitioners/accuseds.
As a sequel FIR No.59 of 2024, dated 03.12.2024, registered under
Section 65(1) of BNS, Sections 363, 366 of IPC and Sections 6, 21 of
the POCSO Act, at Women Police Station Chamba, District Chamba,
H.P., and all the consequent proceedings arising out of the said FIR
are quashed and set-aside. Ordered accordingly.
24. The petition is disposed of in the aforesaid terms,
pending application(s), if any also stands disposed of.
(Chirag Bhanu Singh)
Judge
November 03, 2026
(subhash sharma)

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