Madras High Court
Ajith @ Ajithkumar vs The State Rep. By The Inspector Of ... on 28 June, 2022
Crl.OP.No.14708 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl.O.P. No.14708 of 2022
Ajith @ Ajithkumar ... Petitioner
Vs.
1. The State Rep. by The Inspector of Police,
W-9, All Women Police Station,
Villiwakkam, Chennai.
2. Kasthuri ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, to call for the records pending on the file of the learned
Sessions Judge, Special Court for Exclusive Trial of Cases POCSO Act,
Chennai in Spl. S.C.No.88 of 2021 and quash the criminal proceedings.
For Petitioner : Mr.E.Kannadasan
For Respondents : Mr.A.Gokulakrishnan
Additional Public Prosecutor – R1
Mr.R.Dayalan – R2
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Crl.OP.No.14708 of 2022
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in Spl. S.C.No.88 of 2021 on the file of the learned Sessions
Judge, Special Court for Exclusive Trial of Cases POCSO Act, Chennai for
the offences under sections 365, 366, 366[A] of IPC and Section 6 of
POCSO Act.
2. The allegations against the petitioner is that the petitioner had
kidnapped the daughter of the defacto complainant, who is aged about 17
years and married her.
3. The petitioner filed an affidavit before this Court to the effect that
the petitioner and the victim girl got married and are living together and the
second respondent, who is the mother of the victim has also accepted them
and hence, submitted that the proceedings against the petitioner may be
quashed.
4. The parties have been identified by their respective counsels.
5. The Defacto Complainant and the victim girl were also present
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Crl.OP.No.14708 of 2022
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 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
(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
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Crl.OP.No.14708 of 2022
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 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
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Crl.OP.No.14708 of 2022
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
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
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Crl.OP.No.14708 of 2022
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 petitioner
and the daughter of the second respondent got married and they are now
living together and the second 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 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
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Crl.OP.No.14708 of 2022
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-
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
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Crl.OP.No.14708 of 2022
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 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 Spl. S.C.No.88 of 2021 on the file of the learned Sessions
Judge, Special Court for Exclusive Trial of Cases POCSO Act, Chennai in
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Crl.OP.No.14708 of 2022
exercise of its jurisdiction under Section 482 of the Criminal.
13. Accordingly, this Criminal Original Petition is allowed and the
criminal proceedings in Spl. S.C.No.88 of 2021 on the file of the learned
Sessions Judge, Special Court for Exclusive Trial of Cases POCSO Act,
Chennai, is quashed.
28.06.2022
vrc
To,
1. The Sessions Judge,
Special Court for Exclusive Trial
of Cases POCSO Act,
Chennai.
2. The Inspector of Police,
W-9, All Women Police Station,
Villiwakkam, Chennai.
3. The Public Prosecutor,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
Crl.OP.No.14708 of 2022
N. SATHISH KUMAR, J.
vrc
Crl.O.P. No.14708 of 2022
28.06.2022
https://www.mhc.tn.gov.in/judis
