Madras High Court
Manivel vs The State Rep. By on 21 June, 2022
Crl.OP.No.14030 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl.O.P. No.14030 of 2022
1. Manivel
2. Dharuman ... Petitioners
Vs.
1. The State Rep. by
The Inspector of Police,
Adhiyaman Kottai Police Station,
Dharmapuri District.
2. Saminathan ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, to call for the records relating to the complaint in
Spl.S.C.No.20of 2021 on the file of the Fast Track Mahila Court,
Dharmapuri and quash the same as far as the petitioners are concerned.
For Petitioners : Mr.V.Sakkarapani
For Respondents : Mr.A.Gokulakrishnan
Additional Public Prosecutor – R1
Mr.M.Tamil Priyan – R2
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Crl.OP.No.14030 of 2022
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in Spl.S.C.No.20of 2021 on the file of the Fast Track Mahila
Court, Dharmapuri for the offences under sections 363, 366 of IPC read with
Sections 5[1], 6 16, 17, 5[j], [ii] of POCSO Act 2012.
2. The allegations against the petitioners is that the first petitioner
along with the second petitioner, who is the friend of the first petitioner, had
kidnapped the daughter of the defacto complainant, who is aged about 17
years and the first petitioner married her.
3. The petitioners filed an affidavit before this Court to the effect that
the second petitioner is the friend of the first petitioner and the first
petitioner and the victim girl got married and are living jointly and they are
having one male child out of their wedlock and the second respondent, who
is the father of the victim has also accepted them and hence, submitted that
the proceedings against them may be quashed.
4. Ms. R.Thangam, Special Sub Inspector of Police was present
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Crl.OP.No.14030 of 2022
before this Court and she informed this Court that the second respondent
had approached her and informed her that since the defacto complainant and
the first petitioner got married, having a child and living together happily, he
do not want to proceed further with the criminal proceedings against the
petitioners.
5. The Defacto Complainant 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 first petitioner 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
Single Judge of this Court, in Sabari v. Inspector of Police reported in 2019
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Crl.OP.No.14030 of 2022
(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
between a girl and a boy, where the girl happened to be 16 or
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Crl.OP.No.14030 of 2022
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) 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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Crl.OP.No.14030 of 2022
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 passed an Order 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 first
petitioner and the daughter of the second respondent got married and they
are now having a child and the second respondent also accepted them. The
second petitioner, as friend of the first petitioner is alleged to have aided the
first petitioner to get married with the victim girl. Incidents of this nature
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Crl.OP.No.14030 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.14030 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 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 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 first petitioner 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 this case and it will in fact pave
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Crl.OP.No.14030 of 2022
way for the first petitioner 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 S.C.No.20 of 2021 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
Fast Track Mahila Court, Dharmapuri is quashed.
21.06.2022
vrc
To,
1. The Inspector of Police,
Adhiyaman Kottai Police Station,
Dharmapuri District.
2. The Public Prosecutor,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
Crl.OP.No.14030 of 2022
N. SATHISH KUMAR, J.
vrc
Crl.O.P. No.14030 of 2022
21.06.2022
https://www.mhc.tn.gov.in/judis
