CRL.MC No.5814 of 2023

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` FRIDAY, THE 29[TH] DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 CRL.MC NO. 5814 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT SC 218/2020 OF FAST TRACK SPECIAL ``` ``` COURT, PATTAMBI ``` ## **`PETITIONER/ACCUSED:`** ``` 1XXXX 2XXXX 3XXXX 4XXXX 5XXXX BY ADV P.JAYARAM ``` ## **`RESPONDENTS/STATE & DE-FACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2XXXX BY ADV K.R.PAUL ``` ## **`OTHER PRESENT:`** ``` G SUDHEER (PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.MC No.5814 of 2023 2 ## **O R D E R** The petitioners are the accused in Crime No.82 of 2019 of Nattukal Police Station, Palakkad, alleging commission of offences under Sections 376(2)(n) of the Indian Penal Code, Section 5(l) r/w 6, 5(n) r/w 6, 5(j)(ii) r/w 6 of the Protection of Children from Sexual Offences Act, 2012, Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006. The matter is now pending as S.C.No.218 of 2020 on the files of the Fast Track Special Judge, Pattambi. 2. T he allegation essentially is that the first accused (first petitioner) married the victim before she attained the age of majority. The parents of the first petitioner and the parents of the victim are the other accused in the case. It is stated that the first accused and the victim are closely related to each other. 3. The learned counsel appearing for the petitioners would submit that the marriage was conducted with the blessings of the parents of the first petitioner and the parents of the victim and a crime came to be registered only Crl.MC No.5814 of 2023 3 owing to the fact that the victim became pregnant and the Child Line Authorities had reported that she was yet to attain the age of majority. The learned counsel submits that there are no disputes whatsoever between the petitioners and the victim and the first petitioner and the victim are living together as husband and wife with two children. It is submitted that the continuance of the proceedings in S.C.No.218 of 2020 arising out of Crime No.82 of 2019 of Nattukal Police Station, Palakkad would, therefore, be unjust and against the interest of the victim as well. It is submitted that in such circumstances, going by the principles laid on by this Court in _**Vishnu V. State of Kerala**_ **,** [2023 (4) KHC 1], a jurisdiction of this Court under Section 482 of Cr.P.C. can be invoked to quash the proceedings against the petitioners. 4. Heard the learned Public Prosecutor and the learned counsel appearing for the second respondent. 5. It is not disputed that the first petitioner and the second respondent are now living together as husband and wife along with two children born out of their relationship. I am of the view that this petition can be allowed. In _**Vishnu’**_ s case (Supra), one of the situations Crl.MC No.5814 of 2023 4 considered by this Court was whether this Court can, in circumstances similar to the facts of this case, exercise jurisdiction under Section 482 of Cr.P.C. to quash the proceedings. It was held in paragraphs 21 to 23 as follows; “21. Growing incidences where teenagers who are involved in a romantic relationship with each other fall victim to the offences under the POCSO Act is yet another issue of much concern. These types of 'teen romance' often turn into cohabiting consensually, and the girl alleges rape due to pressure from family, fear of society or when the boy refuses to marry. Since sexual intercourse with a minor is considered “statutory rape”, crime is registered in those types of complaints. The question is, can such sexual assault cases against minors be quashed based on compromise? 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 Crl.MC No.5814 of 2023 5 held that "penetration" as defined under the POCSO Act 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 S.376(1) of the IPC and S.4 of the POCSO Act by the trial Court. The accused took the defence that the victim, aged 16 and Half 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 14year-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 S.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 R.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 Crl.MC No.5814 of 2023 6 ## S ## e ## a r c h ## f ## o ## r ## a l l ## m ## e ## s s ## a ## g e ## s ## w ## i t h ## l ## a b ## e l the deliberation courts undertake when deciding what services, actions, and orders best serve a child. Art. 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 S.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 being, and 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.” 7. No public purpose would be served by continuing with the prosecution against the petitioners. Even after attaining the age of majority, the second respondent I n b o x Crl.MC No.5814 of 2023 7 continues to cohabit with the first petitioner and she has two children from out of their relationship. In such circumstances, it is only appropriate that the proceedings be quashed in exercise of the jurisdiction vested in this Court under Section 482 of Cr.P.C. In the result, this Crl.M.C. is allowed and all further proceedings against the petitioners in S.C.No.218 of 2020 on the files of the Fast Track Special Judge, Pattambi will stand quashed. Sd/- **GOPINATH P., JUDGE** rkj Crl.MC No.5814 of 2023 8 ## **`APPENDIX OF CRL.MC 5814/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure A6 ``` ``` A TRUE COPY OF THE CERTIFICATE DATED 28/09/2023 EVIDENCING THE SOLEMNISATION OF THE MARRIAGE BETWEEN THE 1ST PETITIONER AND 2ND RESPONDENT ON 06/04/2020 IS HEREWITH PRODUCED AND MARKED AS ANNEXURE A6 ```