XXX v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE GOPINATH P.` ``` THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 ``` ``` CRL.MC NO. 6507 OF 2021 ``` ``` CRIME NO.975/2017 OF Nemom Police Station, Thiruvananthapuram AGAINST THE ORDER SC 65/2018 OF FAST TRACK SPECIAL COURT I, ``` ## `NEYYATTINKARA` ## `PETITIONER/S:` ``` XXX AGED 29 YEARS X BY ADV K.S.PRAVEEN ``` ## `RESPONDENT/S:` ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031. 2Y1 X 3Y2 X BY ADV A.R.ANITHA ``` ## `OTHER PRESENT:` ``` SRI NOUSHAD K.A. (SR PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO.6507 OF 2021 2 ``` ## **ORDER** Petitioner is the accused in Crime No.975 of 2017 of Nemom Police Station, Thiruvananthapuram District, alleging commission of offences under Sections 363, 376(2)(n) and Sections 5(1) r/w 6 of the Protection of Children from Sexual Offences Act, 2012. The matter is now pending as S.C. No.65 of 2018 on the Fast Track Special Court (POCSO), Neyyattinkara. 2. The allegation against the petitioner is that the petitioner kidnapped the minor victim from the lawful custody of her parents and took her to various places and committed sexual assault and rape on her, after promising to marry her and thereby he committed the offences alleged against him. 3. Learned counsel appearing for the petitioner would submit that the victim was aged 17 at the relevant time. It is submitted that the petitioner and the victim were in a relationship and the petitioner had not kidnapped her ``` CRL.MC NO.6507 OF 2021 3 ``` or sexually assaulted or abused her at any point of time. It is submitted that after the victim attained the age of majority, a marriage has been solemnized between the petitioner and the alleged victim. Reference is made in this regard to Annexure E, a copy of the marriage certificate issued by the Marriage Officer, Sub-Registrar’s Office, Thuckalay. It is pointed out that Annexure E, shows that the marriage was solemnized between the petitioner and the defacto complainant/victim/2[nd] respondent on 27.12.2019. 4. Heard the learned Public Prosecutor and the learned counsel appearing for the defacto complaint/victim/2[nd] respondent. 5. Having heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the defacto complaint/victim/2[nd] respondent, I am of the view that the proceedings against the petitioner can be terminated. This Court in _**Vishnu v. State of Kerala [2023 (4) KHC 1],**_ held as follows:- ``` CRL.MC NO.6507 OF 2021 4 ``` ‘’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 ``` CRL.MC NO.6507 OF 2021 5 ``` 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 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 ``` CRL.MC NO.6507 OF 2021 6 ``` 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 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 ``` CRL.MC NO.6507 OF 2021 7 ``` 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 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 ``` CRL.MC NO.6507 OF 2021 8 ``` 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.’’ It is clear from the aforesaid decision that where the continuance of proceedings might be prejudicial to the victim as well, it is open to this Court to terminate the proceedings in exercise of the jurisdiction vested in this Court under Section 482 of the Code of Criminal Procedure. In the facts of the present case, it appears that the petitioner and the victim/defacto complainant/2[nd] respondent were in a romantic relationship. After the defacto complainant/victim/2[nd] respondent attained the age of majority, a marriage has been solemnized between them on 27.12.2019. Annexure E, marriage certificate issued by the Marriage Officer, Thuckalay, evidences the solemnization of marriage between the petitioner and the defacto complainant/victim/2[nd] respondent. In the aforesaid circumstances, the chances of a successful ``` CRL.MC NO.6507 OF 2021 9 ``` prosecution are remote. Therefore, following the law laid down by this Court in _**Vishnu**_ (supra) 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.65 of 2018 on the Fast Track Special Court (POCSO), Neyyattinkara (arising out of Crime No.975 of 2017 of Nemom Police Station, Thiruvananthapuram District) will stand quashed as against the petitioner. **Sd/GOPINATH P. JUDGE** SSK/07/12 ``` CRL.MC NO.6507 OF 2021 10 ``` ## `APPENDIX OF CRL.MC 6507/2021` ``` PETITIONER ANNEXURES Annexure A ``` ``` Annexure ACERTIFIED COPY OF THE FINAL REPORT BEFORE THE DISTRICT ADDITIONAL SESSIONS COURT (SPECIAL COURT), THIRUVANANTHAPURAM DATED 01/12/2017. Annexure BCOPY OF THE CERTIFICATE OF MARRIAGE ISSUED BY THE I.N.A.CHURCH, CHITHIRAMCODE, KANYAKUMARI DISTRICT. ``` ``` Annexure CTHE ORIGINAL AFFIDAVIT SWORN BY THE 2ND RESPONDENT/DEFACTO COMPLAINANT. Annexure DTHE ORIGINAL AFFIDAVIT SWORN BY THE 3RD RESPONDENT. ```