Himachal Pradesh High Court
Reserved On : 6.6.2025 vs State Of H.P. & Ors on 17 July, 2025
Author: Virender Singh
Bench: Virender Singh
1 2025:HHC:23336 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MMO No. 401 of 2025 Reserved on : 6.6.2025 Decided on : 17.7.2025 Vinay Kumar & anr.
.
...Petitioners Versus State of H.P. & ors.
...Respondents ___________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting? yes ________________________________________________ For the Petitioners : Mr. Hemant Kumar Thakur, Advocate.
For the Respondents :Mr. Tejasvi Sharma, Addl.
A.G. with Mr. Rohit Sharma, Deputy Advocate General, for respondents-State.
Virender Singh, Judge Petitioners have filed the present petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, (hereinafter referred to as 'the BNSS'), for quashing FIR No 0189/2023, dated 5.9.2023, under Section 376 of Indian Penal Code (Hereinafter referred to as 'the IPC') and Sections 4 and 6 of the Protection of Children from Sexual Offences Act ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 2 2025:HHC:23336 (hereinafter referred to as 'the POCSO Act'), registered with Police Station, West Shimla, District Shimla, H.P., as well as, the proceedings resultant thereto, in the .
shape of Sessions Trial filing No. 5292/2023, titled as, 'State of H.P. versus Sachin Adila & others, pending before the learned Sessions Judge, Fast Track, Special Court Rape/POCSO Shimla, H.P. ( hereinafter referred to as 'the trial Court'), on the basis of compromise, having been effected between the parties.
2. The relief has mainly been sought on the ground that FIR No. 189 of 2023 was registered on the statements of respondents No. 4 and 5. Thereafter, Police has conducted investigation and submitted the charge-sheet, in the competent Court of law. During those proceedings, petitioner No. 1 and respondent No. 5 (child victim) have solemnized the marriage, on 21.4.2025 at Aashirwad Social Welfare Society, Sunny Side, Solan, H.P., as per the Hindu rites and customs, in the presence of their respective family members, friends and relatives.
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3. In this regard, petitioners have relied upon the Marriage Certificate, Annexure P-2, issued by the authorities. It is the further case of the petitioners that .
after solemnization of the marriage, the matter has been compromised between the parties, with the intervention of the respectables of the society, as well as, their family members. The compromise deed, dated 28.4.2025 has been annexed with the petition as Annexure P-3.
4. On the basis of said compromise, it has also been agreed upon between the parties that they will also end the criminal case, arising out of FIR No. 189 of 2023. The dispute between the parties is stated to be private in nature, as both the parties are stated to have now amicably settled the said issue, with the hope of their better future life.
5. It is the further case of the petitioners that in view of the compromise, Annexure P-3, if the proceedings are allowed to be continued, it would be nothing, but abuse of process of law and also wastage of the precious judicial time of the learned trial Court.
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6. The petitioners have earlier filed Cr.MMO No. 333 of 2020, titled as, 'Vinay Kumar and another versus State of H.P. & others', which was dismissed as .
withdrawn, on 5.5.2025.
7. In order to buttress his contention, the learned counsel for the petitioners, has relied upon the decision of the Hon'ble Supreme Court in petition for Special Leave to Appeal (Crl.) No. 492 of 2025, titled as, 'Mahesh Mukund Patel versus State of U.P. & ors.', as well as, the decision of this Court in Cr. MMO No. 121 of 2024, titled as, 'Manoj Kumar & another versus State of H.P.', decided on 2.6.2025.
8. On the basis of above facts, the petitioners have prayed that the petition may kindly be allowed by quashing the FIR in question, as well as, the proceedings resultant thereto.
9. Alongwith the petition, Marriage Certificate, issued by Aashirwad Social Welfare Socieity, Solan, as well as, compromise deed, have also been annexed.
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10. In this case, notices were confined to respondents No. 1 to 3, only, as this Court has raised the question of maintainability of the present petition.
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11. In pursuance of the notice, respondents No. 1 to 3-State have filed the status report, disclosing therein that on 5.9.2023, an information was received from Deen Dayal Upadhyay Zonal Hospital, Shimla, in Police Station, West Shimla, disclosing therein that a girl, 15 years of age, alongwith her mother, had come from place 'X', for check-up. The said girl was found to be pregnant. On this, ASI Suresh Kumar, alongwith other police officials, including LC Lata No. 1092, reached Deen Dayal Upadhyay, Zonal Hospital, Shimla, where the child victim, aged about 16 years, alongwith her mother, was found present.
11.1 The child victim, in the presence of her mother, made statement to LC Lata No. 1092, disclosing therein, that she is resident of the address, as mentioned in her statement and studying in class 10+1, in school 'Y'. Her parents are stated to have obtained divorce. She, alongwith her elder brother, is ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 6 2025:HHC:23336 stated to be residing with their mother. About 6-7 months ago, she is stated to have developed acquaintance with a person, namely, Sachin Aadil .
(petitioner No. 2). They are stated to have met each other in the market, on many occasions. According to the child victim, about 5-6 months ago, petitioner No. 2 Sachin met her at Ghora Chowki Dargah. The child victim had already apprised him that her mother and elder brother remain out of house, during day hours.
Hence, on that day, Sachin Aadil (petitioner No. 2) expressed his intention to visit her house. Thereafter, they had gone to the house of the child victim, where the child victim was allegedly raped, despite the resistance shown by her. Thereafter, whenever her mother and elder brother used to be out of the house, the child victim and petitioner No. 2, Sachin used to meet at the house of the child victim, where he had raped her.
11.2 The child victim also got recorded in her statement that one day, petitioner No. 2 Sachin met her in Ram Bazar, Shimla. On that day, friend of the ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 7 2025:HHC:23336 child victim was also with her. The child victim disclosed to her about her relationship with petitioner No. 2 Sachin, as well as, her pregnancy. The child .
victim disclosed the fact of her pregnancy to petitioner No.2 Sachin, upon which, he stopped talking to her.
She has also got recorded in her statement that on that day, the child victim disclosed this fact to her mother. Thereafter, her mother brought her to Deen Dayal Upadhyay, Zonal Hospital, Shimla, where she was checked up and found pregnant, upon which, her mother called the Police.
11.3. Lastly, she has levelled the allegations against petitioner No. 2 Sachin by stating that he has forcibly raped her, due to which, she got pregnant.
11.4. On the basis of above facts, the Police registered the case under Section 376 IPC. Thereafter, the police machinery swung into motion.
11.5. On 5.9.2023, the child victim was medico legally examined at DDU Hospital, Shimla. Physical evidence, so collected, by the Doctor, was handed over to the Police. Statements of the witnesses, under ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 8 2025:HHC:23336 Section 161 Cr. P.C. were recorded. Petitioner No. 2 Sachin was arrested and was taken to DDU, Hospital, Shimla, where, he was identified by the child victim to .
be the person, who had made physical relations with her.
11.6. On 5.9.2023, petitioner No. 2 Sachin was arrested. He was also medico- legally examined. The Medical Officer collected the physical evidence, which was also handed over to the Police.
11.7. During the medico-legal examination of the child victim at Deen Dayal Upadhyay, Zonal Hospital, Shimla, she also disclosed that apart from petitioner No. 2, namely Sachin, another person had also made physical relations with her. This fact was duly recorded by the Medical Officer in the MLC, on 6.9.2023. Thereafter, the child victim was referred to KNH, Shimla, where she was inquired in the presence of her mother, and she has disclosed in the inquiry that one Vinay Kumar (petitioner No. 1), who is residing at her house, had also raped her, on 29.8.2023. Thereafter, the statements of the child ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 9 2025:HHC:23336 victim and her mother were recorded under Section 161 Cr. P.C. Thereafter, petitioner No. 2 Vinay Kumar was also arrested.
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11.8. On 6.9.2023, when the child victim was admitted in KNH, Shimla, her fetus was got aborted.
Thereafter, the Doctor preserved the fetus, placenta and blood samples of fetus, as physical evidence, which was also handed over to the Police. On 11.9.2023, the child victim was discharged from Kamla Nehru Hospital, Shimla. Thereafter, she was produced before the Court, where her statement was got recorded, under Section 164 Cr.P.C.
11.9. During investigation, the proof regarding the date of birth of the child victim was obtained from the concerned Gram Panchayat. As per the said record, her date of birth was found to be 9.11.2007. Her matriculation certificate has also been obtained, according to which, her date of birth has been found to be 9.4.2007.
11.10. As per the DNA report, petitioner No. 1, Vinay Kumar was found to be the biological father of the ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 10 2025:HHC:23336 fetus. On the completion of the investigation, the Police filed the charge sheet in the competent Court of law.
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11.11. Lastly, it has been submitted that the case is now listed for DWs, on 16.6.2025.
12. From these facts, one thing is clear that evidence against the petitioners, has already been recorded, and statement under Section 313 Cr. P.C. has also been recorded. Now, the case is stated to have been listed for DWs.
13. In such situation, the material question, which arises for determination, in this case, is whether the relief, as sought in the petition, that too, on the basis of compromise, can be granted to the petitioners, or not?
14. A three Judge Bench of Hon'ble Supreme Court in 'State of M.P. versus Laxmi Narayan', 2019 (5) SCC 688, has deprecated the practice of accepting the compromise, when, the evidence of the prosecution is closed. Relevant portion of the judgment is reproduced as under:
::: Downloaded on - 18/07/2025 21:29:23 :::CIS11 2025:HHC:23336 "29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be .
liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-
sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court.
Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime." (self emphasis supplied)
15. Judging the facts and circumstances of the present case, in the light of the decision of Hon'ble Supreme Court in Laxmi Narayan's case (supra), ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 12 2025:HHC:23336 acceptance of the compromise, at this stage, is not permissible.
16. The FIR, in question, has been registered, .
under the special statute i.e. POCSO Act. The Legislature, in its wisdom, has enacted the special statute, i.e. POCSO Act, by keeping in view the rising number of offences, being committed against the children. Once, it has been held that the offences are against the State, then, it is the duty of the State to prosecute the offender, before the competent Court of law.
17. The crime is against the society, as such, any person can put the criminal machinery into motion.
The positive duty has been caste upon a citizen to put the criminal machinery into motion. However, under the garb of the said concept, the petition for quashing the serious offence cannot be permitted to be entertained, on behalf of the victim or complainant.
18. As observed earlier, the Legislature, in its wisdom, has enacted the POCSO Act, with an object to curb the child abuse and protection of the children ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 13 2025:HHC:23336 from sexual offences. The object of the Act has elaborately been discussed by the Hon'ble Supreme Court in a case titled as, 'Alakh Alok Srivastava .
versus Union of India and others', reported in 2018(7) SCALE 88. Relevant paras 10 to 12, 19 and 20 of the judgment, are reproduced, as under:
"10. The POCSO Act has been legislated keeping in view the fundamental concept under Article 15 of the Constitution that empowers the State to make special provisions for children and also Article 39(f) which provides that the State shall in particular direct its policy towards securing that the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. The Statement of Objects and Reasons of the Act indicate the focus for reduction of child abuse and protection of children from the offences of sexual assault, sexual harassment and pornography, etc. The relevant part of the Statement of Objects and Reasons of the POCSO Act is extracted below:-
"3. The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. This is corroborated by the 'Study on Child Abuse: India 2007' conducted by the Ministry of Women and Child Development. Moreover, sexual offences against children are not adequately addressed by the existing laws. A large number of such offences are neither specifically provided for nor are they adequately penalized. The interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 14 2025:HHC:23336 Against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence.
4. It is, therefore, proposed to enact a self contained comprehensive legislation inter alia to provide for .
protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process incorporating child friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences."
11. In this context, it is apposite to reproduce the long Preamble of the POCSO Act. It is as follows:-
"An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.
Whereas clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children;
And whereas, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child; And whereas it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;::: Downloaded on - 18/07/2025 21:29:23 :::CIS
15 2025:HHC:23336 And whereas it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the .
child;
And whereas the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent -
(a) the inducement or coercion of a child to engage in any unlawful sexual activity;
(b) the exploitative use of children in prostitution or other unlawful sexual practices;
(c)The exploitative use of children in pornographic performances and materials; And whereas sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed."
12. In Eera through Dr. Manjula Krippendorf v. State (NCT of Delhi) and another, one of us (Dipak Misra, J), dwelling upon the purpose of the Statement of Objects and Reasons and the Preamble of the POCSO Act, observed:-
"20. ... the very purpose of bringing a legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the preamble, it is manifest that it recognizes the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 16 2025:HHC:23336 that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The statement of objects and reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of .
children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. There is also a mention which is quite significant that interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing childfriendly procedure.
Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the POCSO rAct".
xxx xxx xxx
19. Speaking about the child, a three-Judge Bench in M.C.Mehta v. State of T.N. and others, (1996) 6 SCC 756, opined that:-
"child is the father of man". To enable fathering of a valiant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned."
20. In Supreme Court Women Lawyers Association 11 (SCWLA) v. Union of India and another, (2016) 3 SCC 680, this Court has observed:-
"In the case at hand, we are concerned with the rape committed on a girl child. As has been urged before us that such crimes are rampant for unfathomable reasons and it is the obligation of the law and law- makers to cultivate respect for the children and ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 17 2025:HHC:23336 especially the girl children who are treated with such barbarity and savageness as indicated earlier. The learned Senior Counsel appearing for the petitioner has emphasised on the obtaining horrendous and repulsive situation."
.
Alice Miller, a Swiss psychologist, speaking about child abuse has said:-
"Child abuse damages a person for life and that damage is in no way diminished by the ignorance of the perpetrator. It is only with the uncovering of the complete truth as it affects all those involved that a genuinely viable solution can be found to the dangers of child abuse."
19. Similar view has again been taken by the Hon'ble Supreme Court in 'State of Maharashtra and Another versus Dr. Maroti S/o Kashinath Pimpalkar', reported in (2023) 4 SCC 298. Relevant paragraph 10 of the said judgment is reproduced, as under:-
"10. Having made such a short survey on authorities on the exercise of power under Section 482 Cr.P.C. as above, we will now refer to the object and purposes of the POCSO Act. Article 15 of the Constitution, inter alia confers powers upon the State to make special provisions for children and Article 39 (f) provides not only that the State shall direct its policy towards securing that the children are given opportunities to develop in a healthy manner and in conditions of freedom and dignity but also to ensure that their childhood and youth are protected against exploitation and against moral and material abandonment. Recognizing the constitutional obligation and keeping in view the fundamental concept under Article 15 of the ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 18 2025:HHC:23336 Constitution and also realizing that sexual offences against children are not adequately addressed by the existing laws, POCSO Act was enacted. The provisions thereunder would reveal that it also aims to ensure that such offenders are not spared and should be properly booked."
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20. The Hon'ble Supreme Court in Daxaben versus The State of Gujarat and others, reported in (2022) 11 SCALE 329, has elaborately discussed the role of the complainant in the cases, registered, under the POCSO Act. Relevant paragraphs 38 and 40 of the said judgment are reproduced, as under:-
"38. However, before exercising its power under section 482 of the Cr.P.C. to quash an FIR, criminal complaint and/or criminal proceedings, the High Court, as observed above, has to be circumspect and have due regard to the nature and gravity of the offence. Heinous or serious crime, which are not private in nature and have a serious impact on society cannot be quashed on the basis of a compromise between the offender and the complainant and/or the victim. Crimes like murder, rape, burglary, dacoity and even abatement to commit suicide are neither private nor civil in nature. Such crimes are against the society. In no circumstances can prosecution be quashed on compromise, when the offence is serious and grave and falls within the ambit of crime against society.
39. xxx xxx xxx
40. In Criminal Jurisprudence, the position of the complainant is only that of the informant. Once at FIR and/or criminal complaint is lodged and a criminal case is started by the State, it becomes a matter between the State and the accused. The State has a duty to ensure that law and order is maintained in society. It is for the State to prosecute offenders. In case of grave and serious non-compoundable offences which impact ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 19 2025:HHC:23336 society, the informant and/or complainant only has the right of hearing, to the extent of ensuring that justice is done by conviction and punishment of the offender. An informant has no right in law to withdraw the complaint of a noncompoundable offence of a grave, serious and/or heinous nature, which .
impacts society."
(self-emphasis supplied)
21. The Hon'ble Supreme Court in Criminal Appeal No.3403 of 2023, titled as 'Ramji Lal Bairwa & Anr. Vs. State of Rajasthan & Ors.', Neutral Citation No. 2024 (INSC) 846, has elaborately discussed the provisions of POCSO Act and has held that the quashing of the proceedings, under Section 528 of the BNSS, in POCSO cases, on the basis of the settlement, is against the legislative intent, behind the enactment. Relevant paragraphs 10 to 12 and 31 of the said judgment are reproduced, as under:-
"10. Before dealing with the contentions on behalf of the respondents and also the submissions of the learned amicus curiae and the counsel for the intervenor, we think it only appropriate to refer to certain relevant aspects of the POCSO Act. As introduction to the POCSO Act, what actually actuated the Parliament to enact 'POCSO Act' has been stated thus:-
"Sexual offences against children are not adequately addressed by the existing laws. A large number of such offences are neither specifically provided with nor are they adequately penalised. Such offences against ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 20 2025:HHC:23336 children need to be defined explicitly and countered through adequate penalties as an effective deterrence. This Act provides for protection of children from offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well-
.
being of children."
11. Contextually, it is worthy to refer to the statement of objects and reasons for the enactment of the POCSO Act. It reads as follows: -
"STATEMENT OF OBJECTS AND REASONS Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children.
Further, article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. 2. The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials.
3. The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. This is corroborated by the 'Study on Child Abuse: India 2007' conducted by the Ministry of Women and Child Development. Moreover, sexual offences against children are not adequately addressed by the existing laws. A large number of such offences are neither specifically provided for nor are they adequately penalised. The interests of the child, both as ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 21 2025:HHC:23336 a victim as well as a witness, need to be protected. It is felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence.
4. It is, therefore, proposed to enact a self contained .
comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process, incorporating child- friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences.
5. The Bill would contribute to enforcement of the right of all children to safety, security and protection from sexual abuse and exploitation.
6. The notes on clauses explain in detail the various provisions contained in the Bill.
7. The Bill seeks to achieve the above objectives."
12. The objects and reasons for the enactment of the POCSO Act, as extracted above, would undoubtedly show that quashment of proceeding initiated under POCSO Act abruptly by invoking the power under Section 482, Cr. PC without permitting it to mature into a trial, except on extremely compelling reasons ex facie malafidely initiated or initiated solely to settle the score etc., would go against the very intention of the legislature behind the enactment. As noted earlier, it is the inadequacy of the existing laws to address certain issues relating sexual offences against the children that made the legislature to come up with the aforesaid legislation with a view to protect and respect the privacy and confidentiality of children and to ensure their physical, emotional, intellectual and social development. The POCSO Act also addressed the lack of provisions defining various offences against the children and also adequate penal provisions therefor. A careful scanning of the various provisions ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 22 2025:HHC:23336 under the POCSO Act would reveal that with a view to achieve the aforesaid objects and purposes various offences against the children are specifically defined and provisions for adequate penalisation are also inserted in the Act. Obviously, rubbing the breast of a child would constitute an offence of 'sexual assault' .
under Section 7 of POCSO Act, punishable with imprisonment of either description for a term which shall not be less than three years and may extend to five years and also fine. They would reveal that the commission of such offences against the children should be viewed as heinous and serious. Needless to say, that commission of such offences cannot be taken lightly as offences of private nature and in fact, such offences are bound to be taken as offences against the society. In the decision in Attorney General for India v. Satish and Anr. at paragraph 38, this Court held thus:-
"The act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialised or held insignificant or peripheral so as to exclude such act from the purview of "sexual assault"
under Section 7. As held by this Court in Balram Kumawat v. Union of India, the law would have to be interpreted having regard to the subjectmatter of the offence and to the object of the law it seeks to achieve. The purpose of the law cannot be to allow the offender to sneak out of the meshes of law."
31. In view of the very object and purpose of enacting the POCSO Act, we find no reason to disagree with the conclusions in paragraph 12 extracted above in the given case. It is more so, when the extracted portion from the complaint that was annexed to the FIR and extracted hereinbefore would reveal that the accused was making pressure on him not to lodge any report. Despite giving such statement in the complaint, within a couple of weeks, the accused managed to compromise the case with the 4th respondent and his wife."
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22. So far as the case law, relied upon by the learned counsel for the petitioners, in Mahesh Mukund Patel's case (supra), is concerned, the .
decision rendered in Ramji Lal Bairwa's (supra), was rendered in the year 2023, whereas, the Hon'ble Supreme Court has rendered the decision in Mahesh Mukund Patel's case (supra), on 28.2.2025. In such situation, the material question, which arises for determination, before this Court, is as to which decision is to be followed. In the considered opinion of this Court and in view of the settled preposition of law, the decision prior in time, has to be followed.
23. While holding so, view of this Court is being guided by the Hon'ble Supreme Court, in 'National Insurance Company Ltd. Versus Pranay Sethi & others', reported in (2017) 16 Supreme Court Cases
680. Relevant paragraphs 16 to 23 of the judgment are reproduced as under:
"16. In State of Bihar v. Kalika Kuer alias Kalika Singh and others19, it has been held:-
"10. ... an earlier decision may seem to be incorrect to a Bench of a coordinate jurisdiction considering the ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 24 2025:HHC:23336 question later, on the ground that a possible aspect of the matter was not considered or not raised before the court or more aspects should have been gone into by the court deciding the matter earlier but it would not be a reason to say that the (2003) 5 SCC 448 decision was rendered per .
incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the later Bench of coordinate jurisdiction. ..."
The Court has further ruled:-
"10. ... Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways -- either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits."
17. In G.L. Batra v. State of Haryana and others, the Court has accepted the said principle on the basis of judgments of this Court rendered in Union of India v. Godfrey Philips India Ltd., Sundarjas Kanyalal Bhatija v. Collector, Thane, Maharashtra and Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel . It may be noted here that the Constitution Bench in Madras Bar Association v. Union of India and another has clearly stated that the prior Constitution Bench judgment in Union of India v. Madras Bar Association is a binding precedent. Be it clarified, the issues (2014) 13 SCC 759 (1985) 4 SCC 369 (1989) 3 SCC 396 AIR 1968 SC 372 (2015) 8 SCC 583 (2010) 11 SCC 1 that were put to rest in the earlier Constitution Bench judgment were treated as precedents by latter Constitution Bench.
19. In this regard, we may refer to a passage from Jaisri Sahu v. Rajdewan Dubey:-
"10. Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 25 2025:HHC:23336 decisions, and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question, and a .
contrary decision is given without reference to the earlier decision. The question has also been discussed as to the correct procedure to be followed when two such conflicting decisions are placed before a later Bench. The practice in the Patna High Court appears to be that in those cases, the earlier decision is followed and not the later. In England the practice is, as noticed in the judgment in Seshamma v. Venkata Narasimharao that the decision of a court of appeal is considered as a general rule to be binding on it. There are exceptions to it, and one of them is thus stated in Halsbury's Laws of England, 3rd Edn., Vol. 22, para 1687, pp. 799-800:
"1687...The court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a Court of a co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords."
In Virayya v. Venkata Subbayya it has been held by the Andhra High Court that under the circumstances aforesaid the Bench is free to adopt that view which is in accordance with justice and legal principles after taking into consideration the views expressed in the two conflicting Benches, vide also the decision of the Nagpur High Court in Bilimoria v. Central Bank of India. The better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 26 2025:HHC:23336 should follow the one Bench decision or the other. We have no doubt that when such situations arise, the Bench hearing cases would refer the matter for the decision of a Full Court."
19. Though the aforesaid was articulated in the context of the .
High Court, yet this Court has been following the same as is revealed from the aforestated pronouncements including that of the Constitution Bench and, therefore, we entirely agree with the said view because it is the precise warrant of respecting a precedent which is the fundamental norm of judicial discipline.
20. In the context, we may fruitfully note what has been stated in Pradip Chandra Parija and others v. Pramod Chandra Patnaik and others. In the said case, the Constitution Bench was dealing with a situation where the two-Judge Bench disagreeing with the three-Judge Bench decision directed the (2002) 1 SCC 1 matter to be placed before a larger Bench of five Judges of this Court. In that scenario, the Constitution Bench stated:-
"6. ... In our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment..."
21. In Chandra Prakash and others v. State of U.P. and another, another Constitution Bench dealing with the concept of precedents stated thus:-
"22. ... The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 27 2025:HHC:23336 enunciation of legal principles in the decisions of this Court. It is in the above context, this Court in the case of Raghubir Singh held that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or smaller number of Judges. ..."
.
Be it noted, Chandra Prakash concurred with the view expressed in Raghubir Singh and Pradip Chandra Parija.
(2002) 4 SCC 234 (1989) 2 SCC 754
22. In Sandhya Educational Society and another v. Union of India and others , it has been observed that judicial decorum and discipline is paramount and, therefore, a coordinate Bench has to respect the judgments and orders passed by another coordinate Bench. In Rattiram and others v. State of Madhya Pradesh, the Court dwelt upon the issue what would be the consequent effect of the latter decision which had been rendered without noticing the earlier decisions. The Court noted the observations in Raghubir Singh (supra) and reproduced a passage from Indian Oil Corporation Ltd. v. Municipal Corporation which is to the following effect:-
" 27.....'8. ... The Division Bench of the High Court in Municipal Corpn., Indore v. Ratnaprabha Dhanda was clearly in error in taking the view that the decision of this Court in Ratnaprabha was not binding on it. In doing so, the Division Bench of the High Court did something which even a later co- equal Bench of this Court did not and could not do. ..."
23. It also stated what has been expressed in Raghubir Singh (supra) by R.S. Pathak, C.J. It is as follows:-
"28. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 28 2025:HHC:23336 should be a decision rendered by the Full Court or a Constitution Bench of the Court. ..."
24. The said dictate of the Constitution Bench has also been followed by the Hon'ble Supreme Court in .
Union Territory of Ladhakh & others versus Jammu & Kashmir National Conference & Anr., reported in 2023 Live Law (SC) 749. Relevant paragraph-35 of the judgment is reproduced, as under:
"35. We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later Coordinate Bench has doubted its correctness. In this regard, we lay down the position in law. We make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands. It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench. In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts, as held by a 5-Judge Bench in National Insurance Company Limited v Pranay Sethi, (2017) 16 SCC 6805. The High Courts, of course, will do so with careful regard to the facts and circumstances of the case before it."
(self-emphasis supplied) ::: Downloaded on - 18/07/2025 21:29:23 :::CIS 29 2025:HHC:23336
25. In view of above, especially considering the stage of the proceedings and decision of Hon'ble Supreme Court in Ramji Bairwa's case (supra), the .
prayer made in the petition, cannot be accepted.
26. Consequently, the present petition is held to be not maintainable and the same is accordingly dismissed.
27. The pending application(s), if any, are also disposed of.
(Virender Singh) Judge July 17, 2025 Kalpana ::: Downloaded on - 18/07/2025 21:29:23 :::CIS