Madras High Court
Prakash vs The State on 16 June, 2022
Crl. O.P. No.7041 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 16/6/2022
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. No.7041 of 2022
and
Crl.M.P.Nos.3991 and 3994 of 2022
Prakash ... Petitioner
Vs
1. The State
rep. By The Inspector of Police
All Women Police Station
Namakkal
Namakkal District.
2. S. Kannika ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 Cr.P.C., to call
for the records and quash the proceedings in Spl.C.C.No.115 of 2021 on the file
of FTC Mahila Court, Namakkal.
For Petitioner ... Mr.M.Devaraj
for Mr.C.Karthik
For Respondents ... Mr.A.Gokulakrishnan
Additional Public Prosecutor
for R.1.
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Crl. O.P. No.7041 of 2022
ORDER
This Criminal Original Petition has been filed to quash the proceedings
in Spl.C.C.No.115 of 2021 on the file of FTC Mahila Court, Namakkal.
2. The case of the prosecution is that there was a love affair between the
petitioner and victim girl/third respondent. The petitioner who is 35 years old,
kidnapped the victim girl, aged 16 years and married her at Manmalai Murugan
Kovil at Sengaligoundanoor on 21/8/2020. Thereafter, she got pregnant.
3. On knowing the above said fact, the Social Welfare Officer preferred
a complaint to the respondent Police on 18/11/2021. Respondent Police
investigated and filed a final report and the same is taken cognisance for the
offences punishable under Sections 9 of Prohibition of Child Marriage Act,
2006, Sections 6, 5 (1) & 5 (j) (ii) of the Protection of Child from Sexual
Offences Act and Section 366 of the Indian Penal Code in Spl.C.C.No.115 of
2021 on the file of the Fast Track Court, Namakkal.
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Crl. O.P. No.7041 of 2022
4. Heard Mr.M.Devaraj, learned counsel for the petitioner and
Mr.A.Gokulakrishnan, learned Additional Public Prosecutor for the first
respondent.
5. The learned counsel appearing for the petitioner submitted that the
parties hail from the lower state of Society and they were unaware of the rigors
and consequences of the POCSO Act. Now, the victim girl has attained
majority. Due to the intervention of the relatives, marriage was performed and
registered.
6. Today, when the matter was taken up for hearing, petitioner, defacto
complainant and second respondent were present. This Court examined the
victim girl who stated that there was a love affair between herself and the
petitioner and that she is not willing to undergo this agony any further and
wanted the criminal proceedings to be quashed. Memorandum of joint
Compromise, dated 31/3/2022 was filed to that effect.
7. The learned Additional Public Prosecutor appearing on behalf of the
first respondent submitted that though the parties entered into a compromise
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Crl. O.P. No.7041 of 2022
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.
8. 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 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
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Crl. O.P. No.7041 of 2022
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 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
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Crl. O.P. No.7041 of 2022
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 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”.
9. In the case on hand, the petitioner and the third respondent got
married on 19/10/2021, with the help of the close relatives and now the said
victim has become major. After the complaint lodged by the Social Welfare
Officer, the respondent Police registered the FIR for offences of kidnapping
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Crl. O.P. No.7041 of 2022
and various offences under POCSO Act. Several criminal cases were booked
under the POCSO Act which fall under this category. As a consequence,
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 the 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.
10. The main issue that requires the consideration of this Court is as to
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Crl. O.P. No.7041 of 2022
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 two persons. Quashing
the proceedings, will not affect any overriding public interest in this case and it
will in fact pave way for the petitioner and the victim girl to settle down in their
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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 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 C.C.No.115 of 2021 on the file of the learned Fast Track
Mahila Court, Namakkal, 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 Spl.C.C.No.115 of 2021, on the file of the
learned Fast Track Mahila Court, Namakkal is quashed. Consequently, the
connected Criminal Miscellaneous Petitions are closed.
16/6/2022
mvs.
Index: Yes/No
Internet: Yes
Speaking/Non-speaking order
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Crl. O.P. No.7041 of 2022
N.SATHISH KUMAR,J
mvs.
To
1. The Fast Track Mahila Court, Namakkal.
2. The Inspector of Police
All Women Police Station
Namakkal
Namakkal District.
3. The Inspector of Police
Annur Police Station
Coimbatore.
4. The Public Prosecutor,
High Court, Madras.
Crl. O.P. No.7041 of 2022
16/6/2022
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