XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945 ``` ## `CRL.MC NO. 2501 OF 2022` ``` CRIME NO.955/2019 OF Koyilandy Police Station, Kozhikode ``` ``` AGAINST THE ORDER/JUDGMENT SC 865/2020 OF FAST TRACK SPECIAL COURT, KOYILANDY ``` ## `PETITIONER/ACCUSED:` ``` XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS. SANTHARAM.P REKHA ARAVIND P.G.GOKULNATH ``` ## `RESPONDENTS/STATE & DEFACTO COMPLAINANT:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS. PUBLIC PROSECUTOR P.B.MUHAMMED AJEESH ``` ``` SRI. VIPIN NARAYAN (SR PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C. NO.2501 OF 2022 ``` ``` 2 ``` ## **ORDER** Petitioner is the accused in crime No.955 of 2019 of Koyilandy Police Station, Kozhikode District which is now pending as S.C.No.865 of 2020 on the files of the Fast Track Special Court for Speedy Disposal of Rape Cases and Cases Registered under POCSO Act, Koyilandy, alleging commission of offences under Sections 450, 376, 366-A and Sections 6,5j(ii) of the POCSO Act. 2. The allegation against the petitioner is that in the month of July 2019, the petitioner trespassed into the house of the victim (who was then aged 16) and had sexual relationships with her as a result of which she became impregnated. It is further alleged that when the petitioner came to know that the victim had been impregnated, the petitioner forcefully took away the victim to his house and they started residing together. 3. Learned counsel for the petitioner submits that the petitioner and the victim were in a romantic ``` Crl.M.C. NO.2501 OF 2022 ``` ``` 3 ``` relationship. It is submitted that after the victim attained the age of majority, a marriage has been solemnized between the petitioner and the victim and they are now living together happily along with their minor child. It is submitted that Annexure A7 is the marriage certificate issued by the Local Registrar of Marriages of Naduvannur Grama Panchayat, which indicates that the petitioner and the alleged victim were married on 09.08.2021. It is submitted that in such circumstances, the proceedings against the petitioner can be quashed as the continuance of proceedings may be prejudicial to the victim also. He places reliance on the judgments of this Court in **Vishnu v. State of Kerala** [2023 (4) KHC 1] in support of his contentions. 4. The learned Public Prosecutor and the learned counsel appearing for the defacto complainant/victim would confirm that the petitioner and the victim are now married and they are living together as husband and wife along with their minor child. ``` Crl.M.C. NO.2501 OF 2022 ``` ``` 4 ``` 5. Having heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the defacto complainant/victim, I am of the opinion that the proceedings against the petitioner can be quashed. It is settled law that heinous offences such as that under Sections 376 of the IPC and corresponding provisions of the POCSO Act cannot be quashed on the ground of settlement. However, this is a case where the petitioner has subsequently married the victim and they are now living together happily as husband ad wife along with their minor Child. This Court in **Vishnu** (Supra) 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 ``` Crl.M.C. NO.2501 OF 2022 ``` ``` 5 ``` 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 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 ``` Crl.M.C. NO.2501 OF 2022 ``` ``` 6 ``` 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 ``` Crl.M.C. NO.2501 OF 2022 ``` ``` 7 ``` 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.’’ 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 ``` Crl.M.C. NO.2501 OF 2022 ``` ``` 8 ``` 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.’’ As rightly pointed out by the learned counsel for the petitioner, this is clearly a case where the continuance of ``` Crl.M.C. NO.2501 OF 2022 ``` ``` 9 ``` proceedings would be prejudicial to the victim as well. The chances of a successful prosecution are also remote. No public interest would be served by continuing with the prosecution against the petitioner. Therefore, in exercise of the jurisdiction vested in this Court under Section 482 of the Cr.P.C., I am of the view that the proceedings against the petitioner can be quashed. Accordingly, this Crl.M.C. is allowed and all further proceedings against the petitioner in crime No.955 of 2019 of Koyilandy Police Station, Kozhikode District which is now pending as S.C.No.865 of 2020 on the files of the Fast Track Special Court for Speedy Disposal of Rape Cases and Cases Registered under POCSO Act, Koyilandy will stand quashed. **Sd/GOPINATH P. JUDGE** SSK/20/12 ``` Crl.M.C. NO.2501 OF 2022 ``` ``` 10 ``` ## `APPENDIX OF CRL.MC 2501/2022` ## `PETITIONER ANNEXURES` - `Annexure 1 True copy of FIR dated 04.12.2019 in Crime No.955/2019 of Quilandy Police COURT` - `Annexure 2 A Certified copy of Final report and charge dated 27.08.2020in Crime No. 955/2019 of Quilandy Police` - `Annexure 3 A Notarized affidavit dated 02.04.2022sworn by informant in SC No. 865/2020 on the files of Fast Track Special Court for Speedy Disposal of Rape Cases and Cases Registered Under Pocso Act, Koyilandy` - `Annexure 4 Certified copy of deposition given by informant before trial court dated 09.12.2021` - `Annexure 5 Certified copy of deposition given by informant's mother before trial court dated 09.12.2021` - `Annexure 6 A true copy of memorandum of evidence in Crime No. 955/2019 of Quilandy Police`