Madras High Court
Deva Arul vs State Rep By Its on 23 August, 2022
Crl.O.P.No.18639 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Crl.O.P.No.18639 of 2022
Deva Arul .. Petitioner
Vs.
1. State rep by its
Inspector of Police,
W-16 AWPS,
Pulianthope, Chennai.
(Crime No.969 of 2020)
2. Mohammed Irfan .. Respondents
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C.,
seeking to call for the entire records relating to the Special S.C.No.145 of
2021, pending on the file of the learned Sessions Judge, Special Court for
exclusive trial of cases under POCSO Act at Chennai and quash the same.
For Petitioner : Mr.C.P.Palanichamy
For Respondent 1 : Mr.E.Raj Thilak
Additional Public Prosecutor
For Respondent 2 : Mr.Ajith Kumar
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Crl.O.P.No.18639 of 2022
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in Special S.C.No.145 of 2021, pending on the file of the
learned Sessions Judge, Special Court for exclusive trial of cases under
POCSO Act at Chennai for the offences punishable under Section 363 of
IPC and Section 6 of POCSO Act and Sections 363 and 346 of IPC and
Section 9(1) r/w Section 10 of POCSO Act 2012.
2. The allegation against the petitioner is that he had kidnapped the
daughter of the second respondent/defacto complainant, who is aged about
17 years and married her.
3. The petitioner has submitted that he and the daughter of the second
respondent loved each other and got married. As their marriage was not
accepted by both the families, they eloped and based on the complaint given
by the second respondent, the petitioner was arrested. Thereafter, the second
respondent has arranged marriage of his daughter with another person and
hence, submitted that the proceedings against the petitioner may be quashed.
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Crl.O.P.No.18639 of 2022
4. Ms.P.Latha, Women Special Sub Inspector of Police attached with
the first respondent police was present before this Court and she informed
this Court that the second respondent had approached her and informed her
that since his daughter has got married with some other person, he do not
want to proceed further with the criminal proceedings against the petitioner.
5. The second respondent / Defacto Complainant along with his
daughter was present before this Court at the time of hearing and he
submitted that his daughter has get married with some other person and
hence he wanted the criminal proceedings against the petitioner to be
quashed. He further submitted that a joint compromise memo has also been
filed before this Court.
6. The learned Additional Public Prosecutor appearing on behalf of
the first respondent police 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 the
parties.
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Crl.O.P.No.18639 of 2022
7. In this regard it is relevant to refer the judgment of the learned
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 hereunder 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
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Crl.O.P.No.18639 of 2022
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
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.
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Crl.O.P.No.18639 of 2022
29. Therefore, on a profound consideration of the
ground realities, the definition of 'Child' under Section 2(d) 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 the light of the above judgments, in the present case the
petitioner and the daughter of the second respondent were in love affair.
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Crl.O.P.No.18639 of 2022
Incidents of this nature 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.O.P.No.18639 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 petitioner. 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 and the victim girl
and their respective families only. It involves the future of young person
who is still in his early twenties. Quashing the proceedings, will not affect
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Crl.O.P.No.18639 of 2022
any overriding public interest in this case and it will in fact pave way for the
petitioner to settle down in his 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 petitioner and their parents as well.
12. In view of the above, this Court is inclined to quash the criminal
proceedings in Special S.C.No.145 of 2021, pending on the file of the
learned Sessions Judge, Special Court for exclusive trial of cases under
POCSO Act at Chennai in exercise of its jurisdiction under Section 482 of
the Cr.P.C.
13. Accordingly, this Criminal Original Petition is allowed and the
criminal proceedings in Special S.C.No.145 of 2021, pending on the file of
the learned Sessions Judge, Special Court for exclusive trial of cases under
POCSO Act at Chennai is quashed.
23.08.2022
kk
To
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Crl.O.P.No.18639 of 2022
1. The Sessions Judge,
Special Court for exclusive
trial of cases under POCSO Act,
Chennai
2. The Inspector of Police,
W-16 AWPS,
Pulianthope, Chennai.
3. The Public Prosecutor,
Madras High Court.
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Crl.O.P.No.18639 of 2022
N.SATHISH KUMAR, J.
kk
Crl.O.P.No.18639 of 2022
23.08.2022
https://www.mhc.tn.gov.in/judis
