CRL.MC No.3961 of 2023

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` TUESDAY, THE 3[RD] DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 CRL.MC NO. 3961 OF 2023 ``` ## **`AGAINST THE ORDER IN SC 826/2022 OF FAST TRACK SPECIAL COURT,`** ## **`PONNANI`** ## **`PETITIONERS/ACCUSED NOS.1 TO 3:`** ``` 1XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX 2XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX 3XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX ``` ``` BY ADVS. M.A.AHAMMAD SAHEER E.A.HARIS MUHAMMED YASIL ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER PONNANI POLICE STATION, MALAPPURAM DISTRICT, PIN – 679577 3XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX ``` ``` BY ADV SRI.VIPIN NARAYAN – SR.PP ``` ## **`THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON`** ``` 03.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C No.3961 of 2023 .. 2 .. ## **O R D E R** Dated this the 3[rd] day of October, 2023 Petitioners are accused Nos.1 to 3 in Crime No.213/2022 alleging commission of offences punishable under Sections 363, 354B, 354D, 376(2)(n) r/w Section 34 of the Indian Penal Code and Section 6(i) r/w 5(l), 8 r/w 7, 12 r/w 11(ii)(iv) and 17 r/w 16(ii) of the Protection of Children from Sexual Offences Act. The matter is now pending as SC No.826/2022 on the file of the Fast Track Special Court (POCSO), Ponnani. 2. The allegation is that 1[st] petitioner eloped with the minor victim in a car and took her to Ernakulam and other places and sexually abused her and committed rape and thereby he committed the offences alleged against him. The other accused namely, petitioners 2 and 3 are allegedly helped the 1[st] petitioner in committing the above offences. 3. The learned counsel appearing for the petitioners would submit that the 1[st] petitioner and the alleged victim were in a relationship. It is submitted that on the date of the alleged incident, the victim was aged 17 years old. It is submitted that after the victim attained the age of majority, the petitioner and Crl.M.C No.3961 of 2023 .. 3 .. the victim got married to each other. It is submitted that Annexure A2 is the marriage certificate of the petitioner and the alleged victim. It is submitted that in such circumstances, no useful purpose will be served by continuing with the prosecution against the petitioner and it would be against the interest of the victim to continue with the prosecution. 4. Heard the learned Public Prosecutor and the learned counsel appearing for the 3[rd] respondent/victim. 5. The learned Public Prosecutor and the learned counsel appearing for the 3[rd] respondent/victim would confirm that the victim is now living with the 1[st] petitioner as his legally wedded wife. It is submitted that Annexure-A2 is the marriage certificate recording the solemnization of marriage between the 1[st] petitioner and the victim. 6. Having heard the learned counsel appearing for the petitioners, learned Public Prosecutor the learned counsel appearing for the 3[rd] respondent/victim, I am of the view that, in the facts and circumstances of the case, the proceedings against the petitioners 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 Crl.M.C No.3961 of 2023 .. 4 .. ## proceedings against the petitioners. In _**Vishnu v. State of Kerala** [2023 (4) KHC 1]_ , 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 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_ Crl.M.C No.3961 of 2023 .. 5 .. _must 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 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_ Crl.M.C No.3961 of 2023 .. 6 .. _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.’’_ _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 non compoundable sexual offences against women and children will result in greater injustice to the victim, its closure would only promote her wellbeing, 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_ Crl.M.C No.3961 of 2023 .. 7 .. _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.’’_ 7. Here, this is also a case where continuance of the proceedings against the petitioners is likely to cause greater prejudice to the victim. Further, the chances of the successful prosecution are also remote. Accordingly, the Crl.M.C is allowed and all further proceedings in S.C. No.826/2022 on the file of the Fast Track Special Court, Ponnani (arising out of Crime No.213/2022 of Ponnani police station, Malappuram) will stand quashed as against the petitioners. Sd/- **GOPINATH P. JUDGE** ded Crl.M.C No.3961 of 2023 .. 8 .. ## **`APPENDIX OF CRL.MC 3961/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1TRUE COPY OF THE FINAL REPORT IN SC NO.826/2022 ON THE FILES OF FAST TRACK SPECIAL COURT (POCSO) PONNANI, MALAPPURAM DISTRICT Annexure A2TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 13.01.2023 ISSUED BY THE DEPARTMENT OF URBAN AFFAIRS, GOVT. OF KERALA Annexure A3THE AFFIDAVIT DATED 19.05.2023 ISSUED BY THE 3RD RESPONDENT ```