Madras High Court
Jothimani vs State Rep. By The Inspector Of ... on 22 August, 2022
Crl.OP.No.17734 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl.O.P. No.17734 of 2022 & Crl.M.P.No.11150 of 2022
Jothimani ... Petitioner
Vs.
1. State Rep. by The Inspector of Police,
AWPS Police Station,
Thudiyalur Police Station,
Coimbatore District.
2. Ravikumar ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, to call for the entire records pursuant to the case in
Spl.S.C.No.15 of 2022 on the file of the Special Court for Exclusive Trial of
Cases under POCSO Act, Coimbatore and quash the same.
For Petitioner : Mr.K.Sudhakar
For Respondents : Mr.E.Rajthilak
Additional Public Prosecutor – R1
R2 appeared in person
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Crl.OP.No.17734 of 2022
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in Spl.S.C.No.15 of 2022 on the file of the Fast Track Mahila
Court, Dharmapuri for the offences under sections 366, 449 and 376 [3] of
IPC read with Sections 4 [2], 5 [j] [ii][I][n] read with 6 of POCSO Act 2012
and Section 9 of Protection of Child Marriage Act, 2006.
2. The petitioner is the father of the victim girl. The petitioner and
the second respondent are relatives. The allegations against the second
respondent that he kidnapped the victim girl and married her and had
physical relationship with her. Based on the statement given by the victim
girl in the hospital, the present complaint has been registered and on
completion of investigation, charge sheet has been filed.
3. The petitioner had stated in the affidavit that second respondent
and his daughter got married and they are having a child and they are living
together and they are having one male child out of their wedlock and the
petitioner, who is the father of the victim girl has also accepted them and
hence, submitted that the proceedings against second respondent may be
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Crl.OP.No.17734 of 2022
quashed.
4. Ms. S.Thangamani, WHC was present before this Court and she
informed this Court that the defacto complainant had approached her and
informed her that since his daughter and the second respondent got married,
having a child and living together happily, he do not want to proceed further
with the criminal proceedings against the second respondent.
5. The petitioner and the victim girl were also present along with her
child before this Court at the time of hearing. This Court examined the
victim girl and she stated that there was a love affair between herself and the
second respondent and that she is not willing to undergo this agony any
further and wanted the criminal proceedings to be quashed.
6. The learned Additional Public Prosecutor appearing on behalf of
the first respondent submitted that though the parties entered into a
compromise while this case is pending, this Court, taking into account the
seriousness of the offence has to consider the issue as to whether an offence
of this nature can be quashed on the ground of compromise between parties.
7. In this regard it is relevant to refer the judgment of the learned
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Crl.OP.No.17734 of 2022
Single Judge of this Court, in Sabari v. Inspector of Police reported in 2019
(3) MLJ Crl 110, wherein the learned single Judge had discussed in detail
about the cases in which persons of the age group of 16 to 18 years are
involved in love affairs and how in some cases ultimately end up in a
criminal case booked for an offence under the POSCO Act. The relevant
portions of the judgment are extracted here under for proper appreciation:
“ 21.When this case was taken up for hearing, this
Court became concerned about the growing incidence of
offences under the POCSO Act on one side and also the
Rigorous Imprisonment envisaged in the Act. Sometimes it
happens that such offences are slapped against teenagers,
who fall victim of the application of the POCSO Act at an
young age without understanding the implication of the
severity of the enactment.
26.In addition to the above, this Court is of the view
that 'warning' of attraction of POCSO Act must be displayed
before screening of any film, which have teenage characters
suggesting relationship between boy and girl.
27.Apart from the above, this Court is of the view that
as per the 3rd respondent's report, majority of cases are due
to relationship between adolescent boys and girls. Though
under Section 2(d) of the Act, 'Child' is defined as a person
below the age of 18 years and in case of any love affair
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Crl.OP.No.17734 of 2022
between a girl and a boy, where the girl happened to be 16
or 17 years old, either in the school final or entering the
college, the relationship invariably assumes the penal
character by subjecting the boy to the rigorous of POCSO
Act. Once the age of the girl is established in such
relationship as below 18 years, the boy involved in the
relationship is sure to be sentenced 7 years or 10 years as
minimum imprisonment, as the case may be.
28.When the girl below 18 years is involved in a
relationship with the teen age boy or little over the teen age,
it is always a question mark as to how such relationship
could be defined, though such relationship would be the
result of mutual innocence and biological attraction. Such
relationship cannot be construed as an unnatural one or
alien to between relationship of opposite sexes. But in such
cases where the age
of the girl is below 18 years, even though she was capable of
giving consent for relationship, being mentally matured,
unfortunately, the provisions of the POCSO Act get attracted
if such relationship transcends beyond platonic limits,
attracting strong arm of law sanctioned by the provisions of
POCSO Act, catching up with the so called offender of sexual
assault, warranting a severe imprisonment of 7/10 years.
29.Therefore, on a profound consideration of the
ground realities, the definition of 'Child' under Section 2(d)
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Crl.OP.No.17734 of 2022
of the POCSO Act can be redefined as 16 instead of 18. Any
consensual sex after the age of 16 or bodily contact or allied
acts can be excluded from the rigorous provisions of the
POCSO Act and such sexual assault, if it is so defined can be
tried under more liberal provision, which can be introduced
in the Act itself and in order to distinguish the cases of teen
age relationship after 16 years, from the cases of sexual
assault on children below 16 years. The Act can be amended
to the effect that the age of the offender ought not to be more
than five years or so than the consensual victim girl of 16
years or more. So that the impressionable age of the victim
girl cannot be taken advantage of by a person who is much
older and crossed the age of presumable infatuation or
innocence”.
8. Following the above judgment, this Court has quashed the final
report in Crl.O.P.No.232 of 2021 dated 27.01.2021 [Vijayalakshmi and
another Vs. State Represented by the Inspector of Police, All Women
Police Station, Erode and another].
9. In light of the above judgments, in the present case the second
respondent and the daughter of the petitioner got married and they are now
having a child and the petitioner also accepted them. Incidents of this nature
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Crl.OP.No.17734 of 2022
keep occurring regularly even now in villages and towns and occasionally in
cities. After the parents or family lodge a complaint, the police register FIRs
for offences of kidnapping and various offences under the POCSO Act.
Several criminal cases booked under the POCSO Act fall under this category.
As a consequence of such a FIR being registered, invariably the boy gets
arrested and thereafter, his youthful life comes to a grinding halt. The
provisions of the POCSO Act, as it stands today, will surely make the acts of
the boy an offence due to its stringent nature. An adolescent boy caught in a
situation like this will surely have no defense if the criminal case is taken to
its logical end. Punishing an adolescent boy who enters into a relationship
with a minor girl by treating him as an offender, was never the objective of
the POCSO Act. These incidents should never be perceived from an adult’s
point of view and such an understanding will in fact lead to lack of empathy.
An adolescent boy who is sent to prison in a case of this nature will be
persecuted throughout his life. It is high time that the legislature takes into
consideration cases of this nature involving adolescents involved in
relationships and swiftly bring in necessary amendments under the Act. The
legislature has to keep pace with the changing societal needs and bring about
necessary changes in law and more particularly in a stringent law such as the
POCSO Act.
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Crl.OP.No.17734 of 2022
10. The main issue that requires the consideration of this Court is as to
whether this Court can quash the criminal proceedings involving non-
compoundable offences pending against the second respondent. The Hon'ble
Supreme Court in the case of Parbathbhai Aahir @ Parbathbhai Vs. State
of Gujrath, reported in 2017 9 SCC 641 and in case of The State of
Madhya Pradesh Vs. Dhruv Gurjar and Another reported in (2019) 2 MLJ
Crl 10, has given sufficient guidelines that must be taken into consideration
by this Court while exercising its jurisdiction under Section 482 of Cr.P.C, to
quash non-compoundable offences. One very important test that has been
laid down is that the Court must necessarily examine if the crime in question
is purely individual in nature or a crime against the society with overriding
public interest. The Hon'ble Supreme Court has held that offences against the
society with overriding public interest even if it gets settled between the
parties, cannot be quashed by this Court.
11. In the present case, the offences in question are purely
individual/personal in nature. It involves the petitioner, the second
respondent and the victim girl and their respective families only. It involves
the future of two young persons who are still in their early twenties.
Quashing the proceedings, will not affect any overriding public interest in
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Crl.OP.No.17734 of 2022
this case and it will in fact pave way for the second respondent and the
victim girl to settle down in their life and look for better future prospects. No
useful purpose will be served in continuing with the criminal proceedings
and keeping these proceedings pending will only swell the mental agony of
the first petitioner, victim girl and their parents as well.
12. In view of the above, this Court is inclined to quash the criminal
proceedings in Special Spl.S.C.No.15 of 2022 on the file of the learned Fast
Track Mahila Court, Dharmapuri in exercise of its jurisdiction under Section
482 of the Criminal.
13. Accordingly, this Criminal Original Petition is allowed and the
criminal proceedings in Special S.C.No.20 of 2021 on the file of the learned
Special Court for Exclusive Trial of Cases under POCSO Act, Coimbatore is
quashed. Consequently, connected miscellaneous petition is closed.
22.08.2022
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Crl.OP.No.17734 of 2022
To,
1. The Special Court for Exclusive Trial of Cases under POCSO Act,
Coimbatore.
2. The Public Prosecutor,
High Court of Madras.
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Crl.OP.No.17734 of 2022
N. SATHISH KUMAR, J.
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Crl.O.P. No.17734 of 2022
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