Poovarasan vs State Rep By
2022 Latest Caselaw 13524 Mad

                                                                                  Crl.O.P.No.17109 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 29.07.2022

                                                         CORAM:

                             THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                                 Crl.O.P.No.17109 of 2022

                  Poovarasan                                             .. Petitioner

                                                            Vs.
                  1. State rep by
                     The Inspector of Police,
                     Natrampalli Police Station,
                     Tirupathur District.
                     (Crime No.156 of 2021)

                  2. Periyasamy                                          .. 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.34 of 2022,

                  pending on the file of the Special Sessions Judge for exclusive trial of cases

                  under POCSO Act at Vellore and quash the same.


                                    For Petitioner          :     Mr.D.Bennington

                                    For Respondent 1        :     Mr.E.Raj Thilak
                                                                  Additional Public Prosecutor

                                    Respondent 2            :   appeared in person
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                                                                                 Crl.O.P.No.17109 of 2022


                                                       ORDER

This Criminal Original Petition has been filed to quash the proceedings

in Spl.S.C.No.34 of 2022 on the file of the Special Sessions Judge for

exclusive trial of cases under POCSO Act at Vellore for the offences under

Sections 5[1] and 6 of POCSO Act 2012 and Sections 363, 366 and 376(2)(1)

of IPC.

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 daughter

of the second respondent married another person and hence, submitted that the

proceedings against the petitioner may be quashed.

4. Mr.K.Ravi, Special Sub Inspector of Police was present before this

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Crl.O.P.No.17109 of 2022

Court and he informed this Court that the second respondent had approached

him and informed him that since his daughter got married to some other

person, he do not want to proceed further with the criminal proceedings

against the petitioner.

5. The Defacto Complainant was present before this Court at the time

of hearing and he submitted that his daughter married 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 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.

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)

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Crl.O.P.No.17109 of 2022

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 to relationship between adolescent boys and girls. Though under Section 2(d) of the Act, 'Child' is defined as a person below the

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Crl.O.P.No.17109 of 2022

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.

29. Therefore, on a profound consideration of the

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Crl.O.P.No.17109 of 2022

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 got married. Incidents of this

nature keep occurring regularly even now in villages and towns and

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Crl.O.P.No.17109 of 2022

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.17109 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 any

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Crl.O.P.No.17109 of 2022

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.34 of 2022, pending on the file of the Special

Sessions Judge for exclusive trial of cases under POCSO Act at Vellore 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.34 of 2022, pending on the file of the

Special Sessions Judge for exclusive trial of cases under POCSO Act at

Vellore is quashed.

29.07.2022 kk

To

1. The Inspector of Police, Natrampalli Police Station, Tirupathur District.

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Crl.O.P.No.17109 of 2022

2. The Public Prosecutor, Madras High Court.

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Crl.O.P.No.17109 of 2022

N.SATHISH KUMAR, J.

kk

Crl.O.P.No.17109 of 2022

29.07.2022

https://www.mhc.tn.gov.in/judis