Madras High Court
R. Parthiban vs State on 7 July, 2022
Crl. O.P. No.15421 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 7/7/2022
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. No.15421 of 2022
and
Crl.M.P.Nos.8645 and 8648 of 2022
1. R. Parthiban
2. Kolanji ... Petitioners
Vs
1. State
rep. By The Inspector of Police
All Women Police Station
Virudhachalam
Cuddalore District.
2. Chithra ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 Cr.P.C., to call
for the records and quash the charge sheet filed in Spl.S.C.No.6 of 2020 on the
file of the Special Judge (POCSO), Cuddalore in so far as the
petitioners/Accused Nos.1 and 2.
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For Petitioner ... Mr.K.Gandhi Kumar
For Respondents ... Mr.Leonard Arul Joseph Selvam
Government Advocate
(Criminal Side)
for R.1.
-----
ORDER
This Criminal Original Petition has been filed to quash the proceedings
pending in Spl.S.C.No.6 of 2020, pending on the file of the learned Special
Judge (POCSO), Cuddalore, for the offences punishable under Sections 306 of
the Indian Penal Code and Section 5 (1), 6 and 17 of the Protection of Child
from Sexual Offences Act, 2012, and Sections 294 (b), 506 (i), 450 and 376 (3)
of the Indian Penal Code.
2. The case of the prosecution is that there was a love affair between the
first petitioner and the daughter of the defacto complainant. During May, they
had physical relationship. As a result, the daughter of the defacto complainant
was pregnant, who was 17 years old, as per School record and the first
petitioner was 24 years old, at the time of occurrence. Since the petitioner had
refused to marry the victim girl, the defacto complainant lodged a complaint
before the All Women Police Station, Virudhachalam, Cuddalore District, which
was registered in Crime No.30 of 2019, for the offence punishable under
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Sections 5 (1) , 6 and 17 of the POCSO Act and Sections 294 (b) and 506 (i) of
the Indian Penal Code. Thereafter, the first petitioner was arrested.
Subsequently, final report has been filed in Spl.S.C.No.6 of 2020, on the file of
the learned Special Judge (POCSO), Cuddalore. The victim girl delivered a
female child by name Dhiviyashri, on 16/2/2020.
3. Heard Mr.K.Gandhi Kumar, learned counsel for the petitioners and
Mr.Leonard Arul Joseph Selvam, learned Government Advocate (Criminal Side)
for the first respondent.
4. Today, when the matter is taken up for hearing, petitioners, defacto
complainant and the victim girl were present in Court, with their respective
counsel and they were identified by M/s.Poorani, W Grade – I, Virudhachalam,
Cuddalore District. In order to identify the respective parties, they have
produced the copies of Aadhaar card which are made part of the records.
5. Joint Compromise Memo, dated 7th July, 2022 and affidavit filed by
the victim Sugitha, were produced before this Court, which was signed by the
parties concerned.
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6. On enquiry, the victim girl submitted that she and the first petitioner
got married and now living as husband and wife happily, with their girl child.
7. Defacto complainant/mother of the victim girl submitted that after
attaining majority on 20/5/2020, the first petitioner and her daughter got
married in Thirumarthurai Sivan Koil, Thirumandurai. She also agreed to give
consent for quashing the charge sheet in Spl.S.C.No.6 of 2020, pending trial
before the Sessions Judge, Special Court of Exclusive Trial of cases under
POCSO Act, Cuddalore.
8. 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.
9. 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
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Crl. O.P. No.15421 of 2022
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 between a girl and
a boy, where the girl happened to be 16 or 17 years old, either
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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) 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
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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”.
10. In light of the above, in the present case the petitioner and the
daughter of the second respondent got married and they are now living happily.
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 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
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boy an offence due to its stringent nature. An adolescent boy caught in a
situation like this will surely have no defence 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.
11. 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 petitioners. 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
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Crl. O.P. No.15421 of 2022
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.
12. In the present case, the offences in question are purely
individual/personal in nature. It involves the first petitioner and the victim girl
and their respective families only. It involves the future of two young persons.
Quashing the proceedings, will not affect any overriding public interest in this
case and it will in fact pave way for the first petitioner and the victim girl to
settle down in their life and look for better future prospects. No useful purpose
would 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.
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13. In view of the above, this Court is inclined to quash the criminal
proceedings in Special Spl.S.C.No.6 of 2020, pending on the file of the learned
Sessions Judge, Special Court for exclusive trial of cases under POCSO Act,
Cuddalore, in exercise of its jurisdiction under Section 482 of the Cr.P.C.
14. Accordingly, this Criminal Original Petition is allowed and the
criminal proceedings in Special Spl.S.C.No.6 of 2020 on the file of the learned
Sessions Judge, Special Court for exclusive trial of cases under POCSO Act,
Cuddalore. Consequently, the connected Criminal Miscellaneous Petition is
closed.
7/7/2022
mvs.
Index: Yes/No
Internet: Yes
Speaking/Non-speaking order
To
1. The Sessions Judge, Special Court for exclusive trial of cases under POCSO
Act, Cuddalore District
2. The Inspector of Police, All Women Police Station
Virudhachalam, Cuddalore District.
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Crl. O.P. No.15421 of 2022
3. The Public Prosecutor,
High Court, Madras.
N. SATHISH KUMAR, J
mvs.
Crl. O.P. No.15421 of 2022
7/7/2022
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