CRL.MC NO. 8141 OF 2023

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE GOPINATH P.` ``` FRIDAY, THE 20[TH] DAY OF OCTOBER 2023 / 28TH ASWINA, 1945 ``` ## `CRL.MC NO. 8141 OF 2023` ``` SC 61/2023 OF FAST TRACK SPECIAL COURT (POCSO), PUNALUR IN CRIME NO.1160/2019 OF PPUNALUR POLICE STATION, KOLLAM DISTRICT ``` ## `PETITIONER/ACCUSED:` ``` XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADV NAHAS H. ``` ## `RESPONDENT/COMPLAINANT:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX ADV. RIZWANA T.N. ``` ``` SRI VIPIN NARAYAN (SR PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO.8141 OF 2023 2 ``` ## **ORDER** Petitioner is the accused in Crime No.1160 of 2019 of Punalur Police Station, Kollam District, alleging commission of offence under Sections 450 and 376 (2) (h) (n) of the Indian Penal Code and Sections 4 r/w 3(a) and Section 6 r/w 5(j)(ii), (l), (q) of the Protection of Children from Sexual Offences Act and 3(1)(w)(i), 3(2)(va) and 3(2) (v) of SC/ST (POA) Act. Following investigation, a final report has been filed and the matter is now pending as S.C.No.61 of 2023 on the file of the Fast Track Special Court (POCSO), Punalur. 2. Learned counsel appearing for the petitioner would submit that the petitioner and the alleged victim were in a relationship for sometime. It is submitted that, after the victim attained the age of majority, a marriage was solemnized between the petitioner and the victim on 14.07.2022 as is evident from Annexure-4 marriage certificate issued by the Marriage Officer, Punalur ``` CRL.MC NO.8141 OF 2023 3 ``` Municipality. It is submitted that the petitioner and the victim are now living together as husband and wife with their two children and therefore, the continuance of proceedings will not be in the interest of the victim. It is submitted that the reading of the FIS of the victim suggests that she was in a relationship with the petitioner on account of the fact that the petitioner had agreed to marry her. It is submitted that, in such circumstances, this Court has held in _**Vishnu v. State of Kerala [2023 (4) KHC 1]**_ , that proceedings can be quashed under Section 482 Cr.P.C. 3. Heard the learned Public Prosecutor and the learned counsel appearing for the victim (the 2[nd] respondent). The learned Public Prosecutor Submits that since SC/ST offences are also involved, the matter can be heard only after notice to the defacto complainant/victim., but since there is appearance for the defacto complainant/victim, no further notice is necessary in the matter. It is submitted that a statement has been ``` CRL.MC NO.8141 OF 2023 4 ``` recorded from the defacto complainant/victim. She has confirmed that she has married the petitioner and they are living together happily as husband and wife. It is also submitted that according to the statement two children have been born out of the wedlock. 4. Having heard the learned counsel appearing for the petitioner, learned Public Prosecutor and the learned counsel appearing for the victim, I am of the view that, in the facts and circumstances of the case, the proceedings against the petitioner can be quashed in exercise of the jurisdiction vested in this Court under Section 482 Cr.P.C. No public purpose will be served by continuing with the the proceedings against the petitioner. _**In Vishnu**_ ## _**(Supra)**_ , it was held as follows:- ‘’19. There is yet another category of cases where though the victim alleged that the sexual assault or rape was forceful or against her will, later, they settled the dispute, got married and led a peaceful life. In most of those cases, the victim admits that the allegation of rape was levelled only because the accused refused to marry her. Allowing prosecution to continue in those cases ``` CRL.MC NO.8141 OF 2023 5 ``` would only result in the disturbance of their happy family life. On the contrary, the closure of such a case would promote their family life. In such cases, the ends of justice demand that the parties be allowed to compromise. However, the Court must ensure that the marriage is not a camouflage to escape punishment and the consent given by the victim for compromise was voluntary. The Court must also be satisfied after considering all the facts and circumstances of the case that quashing the proceedings would promote justice for the victim and the continuation of the proceedings would cause injustice to her. 22. The High Court of Madras [Vijayalakshmi & Anr. V. State & Anr. (Crl.O.P.232/21 decided on 27.01.2021)], while quashing a criminal proceeding initiated under the POCSO Act on the ground of settlement between the accused and the victim held that punishing an adolescent boy for entering a relationship with a girl below 18 years of age was never an objective of this act. “What came to be a law to protect and render justice to victims and survivors of child abuse can become a tool in the hands of certain sections of the society to abuse the process of law.”, it added. The High Court of Calcutta [Ranjit Rajbanshi V. The State of West Bengal and Others (C.R.A No.458 of 2018, decided on 17/9/2021] acquitted an accused, holding that a voluntary joint act of sexual union would not attract offence under the POCSO Act. The court held that “penetration” as defined under the POCSO Act must ``` CRL.MC NO.8141 OF 2023 6 ``` mean a “positive, unilateral act” on the part of the accused, and consensual participatory intercourse, in view of the passion involved, need not always make penetration by itself, a unilateral positive act of the accused but might also be a union between two persons out of their own volition. The Court was considering an appeal where the accused, aged 22, was convicted under Section 376(1) of the IPC and Section 4 of the POCSO Act by the trial Court. The accused took the defence that the victim, aged 16½ years, gave her consent for the act and had admitted her relationship with him. The High Court of Allahabad [Atul Mishra V. State of Uttar Pradesh (Crl.Misc.Bail Application No.53947 of 2021 decided on 25.01.2022] while granting bail to a man booked under the POCSO Act for impregnating a 14-year-old girl, said that the law didn’t intend to bring cases of dense romantic affairs between adolescents or teenagers under its aegis. 23. It is settled that though a minor is not qualified to enter into a contract, it could be the beneficiary of one. In other words, a parent or guardian is competent to contract on behalf of the minor if it is in its best interest. Section 320(4) of Cr. P.C. says that if the person entitled to compound an offence is minor or lunatic, any person competent to contract on their behalf can compound such an offence on their behalf. Under Rule 7 of Order XXXII of the Code of Civil Procedure, a next friend or guardian of the minor, with the leave of the Court, can enter into an agreement or compromise ``` CRL.MC NO.8141 OF 2023 7 ``` on behalf of the minor with reference to the suit in which he acts as next friend or guardian. The term ‘best interest of the child’ generally refers to the deliberation courts undertake when deciding what services, actions, and orders best serve a child. Article 3.1 of the United Nations Convention on the Rights of the Child, 1989, states that in all decisions concerning children that are made by public or private social protection institutions, courts, administrative authorities or legislative branches, the child’s best interest must be a vital consideration. ‘Best interest’ determinations are generally made by considering several factors, with the child’s safety and wellbeing as the paramount concern. As per Section 2(9) of the Juvenile Justice (Care and Protection of Children) Act, 2015, ‘best interest of the child’ means the basis for any decision taken regarding the child to ensure fulfilment of its basic rights and needs, identity, social well-being, and physical, emotional, and intellectual development. Thus, while dealing with the petitions moved by the parent or guardian of the sexual assault victims to quash the criminal proceedings on the ground of compromise, the court must consider whether the allegations prima facie constitute the ingredients of the offence, whether the settlement is in the best interest of the minor victim and whether continuance of the proceedings against the accused and the participation of the minor victim in that proceedings would adversely affect the mental, physical, and emotional well-being of the latter.’’ ``` CRL.MC NO.8141 OF 2023 8 ``` 26. These are the broad principles to be borne in mind while considering the plea to quash criminal proceedings involving non-compoundable sexual offences based on compromise. However, every case is unique and must be decided based on its peculiar facts. The viability of quashing a criminal proceeding on the ground that the accused and the sexual assault victim settled the dispute revolves ultimately around the facts and circumstances of each case, and no straitjacket formula can be formulated. Apart from the categories of cases discussed above, where the High Court has such facts on record which clearly exhibit that the criminal prosecution involving noncompoundable sexual offences against women and children will result in greater injustice to the victim, its closure would only promote her well-being, and the possibility of a conviction is remote, it can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach and very well decide to quash such proceeding upon a compromise between the accused and the victim after taking into account all the relevant facts and circumstances of the particular case including the nature, magnitude, consequences of the crime and genuineness of the compromise. Needless to emphasize, the sexual offences which are grave, heinous, and gruesome in nature shall never be the subject matter of compromise.’’ Here, this is also a case where continuance of the ``` CRL.MC NO.8141 OF 2023 9 ``` proceedings against the petitioner is likely to cause greater prejudice/injustice to the victim and the children born out of the relationship between the petitioner and the victim. Further, the chances of the successful prosecution are also remote. Therefore, in exercise of the jurisdiction vested in this Court under Section 482 of the Code of Criminal Procedure, all further proceedings against the petitioner can be quashed, as no useful purpose will be served by continuing with the proceedings against the petitioner. Accordingly, the Crl.M.C is allowed and all further proceedings in S.C.No.61 of 2023 on the file of the Fast Track Special Court (POCSO), Punalur (arising out of Crime No.1160/2019 of Punalur Police Station) will stand quashed as against the petitioner. ## **Sd/-** **GOPINATH P.** **JUDGE** SSK/20/10 ``` CRL.MC NO.8141 OF 2023 10 ``` ## `APPENDIX OF CRL.MC 8141/2023` ## `PETITIONER ANNEXURES` - `Annexure 1 True copy of the first information report in crime No. 1160/2019 of Punalur Police Station, Kollam` - `Annexure 2 True copy of the final report submitted by the sub inspector of police in 1160/2019 of Punalur Police Station, Kollam` - `Annexure 3 True copy of the affidavit dated 2.10.2023 sworn by the second respondent/defacto complainant` - `Annexure 4 The true copy of the Marriage certificate Vakkalath of R2`