Madras High Court
Arumugam vs The State Represented By on 28 June, 2022
CRL.O.P.No.9691 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2022
CORAM:
THE HON'BLE MR.JUSTICE N.SATHISH KUMAR
CRL.O.P.No.9691 of 2022 and
CRL.M.P.No.5683 of 2022
Arumugam ... Petitioner
Versus
1.The State Represented by,
The Inspector of Police,
Killai Police Station,
Cuddalore District.
(Crime No.129/2020).
2.Sundharamoorthy ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to call for records in Special Sessions Case No.01
of 2021 on the file of the Sessions Judge, Special Court for Exclusive
Trial of Cases, under POCSO Act, Cuddalore and quash the same.
For Petitioner : Mr.N.U.Pressanna
For R1 : Mr.A.Gokulakrishnan
Additional Public Prosecutor
*****
Page No.1 of 12
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CRL.O.P.No.9691 of 2022
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in Special S.C.No.1 of 2021, on the file of the Special Court
for Exclusive Trial of Cases registered under POCSO Act, Cuddalore, for
offence under Sections 6, 5(l), 5(n), 5(j)(ii) of Protection of Children from
Sexual Offence Act, 2012 and Section 366 of IPC.
2.The allegations against the petitioners is that the petitioner had
kidnapped the daughter of the 2nd respondent, who is aged about 17 years
at the time of occurrence and the petitioner married her.
3.The 2nd respondent and her daughter/victim girl filed an affidavit
before this Court to the effect that the petitioner and the victim girl got
married and are living jointly and they are having one female child out of
their wedlock and the second respondent, who is the father of the victim
girl has also accepted them and hence, submitted that the proceedings
against the petitioner may be quashed.
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CRL.O.P.No.9691 of 2022
4.Mr.E.Sathish, Grade-I Constable was present before this Court
and he informed this Court that the 2nd respondent had approached him
and informed that since the victim girl and the petitioner got married,
having a child and living together happily, he do not want to proceed
further with the criminal proceedings against the petitioner.
5.The 2nd respondent 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 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 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
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CRL.O.P.No.9691 of 2022
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 (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
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CRL.O.P.No.9691 of 2022
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
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CRL.O.P.No.9691 of 2022
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 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
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CRL.O.P.No.9691 of 2022
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 light of the above judgments, in the present case the petitioner
and the daughter of the 2nd respondent got married and they are now
having a child and the 2nd respondent also accepted them. 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
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CRL.O.P.No.9691 of 2022
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.
10.The main issue that requires the consideration of this Court is as
to whether this Court can quash the criminal proceedings involving non-
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CRL.O.P.No.9691 of 2022
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 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
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CRL.O.P.No.9691 of 2022
pave way for the 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 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.1 of 2021 on the file of the Special Court
for Exclusive Trial of Cases registered under POCSO Act, Cuddalore 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.1 of 2021 on the file of the
Special Court for Exclusive Trial of Cases registered under POCSO Act,
Cuddalore, is quashed. Consequently, the connected Miscellaneous
Petition is closed.
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CRL.O.P.No.9691 of 2022
Index: Yes/No
Internet: Yes/No
oTo
1.The Special Court for Exclusive Trial of Cases
registered under POCSO Act,
Cuddalore.
2.The Inspector of Police,
Killai Police Station,
Cuddalore District.
3.The Public Prosecutor,
High Court, Madras.
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CRL.O.P.No.9691 of 2022
N.SATHISH KUMAR, J.
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CRL.O.P.No.9691 of 2022
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