Xxxx vs State Of Kerala
2023 Latest Caselaw 10356 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE GOPINATH P.
    SATURDAY, THE 30TH DAY OF SEPTEMBER 2023 / 8TH ASWINA, 1945
                      CRL.MC NO. 5715 OF 2022
  AGAINST THE ORDER/JUDGMENT SC 181/2020 OF ADDITIONAL SESSIONS
  COURT (SPECIAL COURT), KOTTAYAM / I ADDITIONAL MACT, KOTTAYAM
PETITIONER/ACCUSED:

          XXXX

          BY ADVS.
          ADITHYA RAJEEV
          SREEDEV U


RESPONDENT/STATE AND VICTIM:

    1     STATE OF KERALA
          REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA, KOCHI, PIN - 682031
    2     YYYY
          YYYY, PIN - 686587
          BY ADV Surin George Ipe




          ADV. G. SUDHEER, PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
30.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 5715 OF 2022                        2



                                       ORDER

Petitioner is the accused in Crime No.36/2020 of

Kuravilangadu Police Station, Kottayam District, alleging

commission of offence under Section 376 of the Indian Penal

Code and Sections 6 r/w. Sections 5j(ii) and 5I of the Protection

of Children from Sexual Offences Act . Following investigation,

the matter is now pending as S.C. No.181 of 2020 of the

Additional Sessions Court-I, Kottayam, alleging commission of

offences under Sections 450, 376, 376 (2)(n) of the Indian

Penal Code and under Section 4 r/w. Sections 3(a), 6 r/w.

Section 5(j)(ii),, section 7r/w. Section 8 and section 10 r/w.

Section 9(1) of the Protection of Children from Sexual Offences

Act.

2. Learned counsel appearing for the petitioner would

submit that the allegation against the petitioner is that, in the

second week of June-2019 and in the first week of September-

2019, the petitioner had committed rape on the victim, at her

residential house, at a time when the victim was only 17 years

of age. It is submitted that the petitioner and the victim were

in a relationship. It is submitted that, after the victim attained

the age of majority, a marriage was solemnized between the

petitioner and the victim as is evident from Annexure-III,

marriage certificate. It is submitted that the petitioner and the

victim are now living together as husband and wife with their

child and therefore, the continuance of proceedings will not be

in the interest of the victim. 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).

4. Learned Public Prosecutor and the learned counsel

appearing for the 2nd respondent (victim) would confirm that

the victim is now living with the petitioner as his legally

wedded wife along with her child.

5. Having heard the learned counsel appearing for the

petitioner, learned Public Prosecutor 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 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 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 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 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 proceedings

against the petitioner is likely to cause greater prejudice to the

victim and the child 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.181/2020 on the file of the Additional

Sessions Court-I, Kottayam (arising out of Crime No.36/2020 of

Kuravilangadu police station) will stand quashed as against the

petitioner.

Sd/-

GOPINATH P.

JUDGE ajt

APPENDIX ANNEXURE- I - A TRUE COPY OF THE FIRST INFORMATION REPORT DATED 13.01.2020 IN CRIME NO.36 OF 2020 OF THE KURAVILANGAD POLICE STATION, KOTTAYAM DISTRICT.

ANNEXURE- II - A TRUE COPY OF THE FINAL REPORT DATED 15.06.2020 IN CRIME NO.36 OF 2020 OF THE KURAVILANGAD POLICE STATION, KOTTAYAM DISTRICT. ANNEXURE-III - A TRUE COPY OF THE CERTIFICATE OF MARRIAGE DATED 23.06.2021 ISSUED BY THE MARRIAGE OFFICER, KURAVILANGAD, ANNEXURE - IV - AFFIDAVIT DATED 10.08.2022 SWORN BY THE 2ND RESPONDENT ANNEXURE - V -A TRUE COPY OF THE DEPOSITION OF PW1 IN S.C. NO.181 OF 2020 OF THE ADDITIONAL SESSIONS COURT-I, KOTTAYAM.