Meghalaya High Court
Shri. Rajeev Chettri & 2 Ors. vs . State Of Meghalaya on 12 August, 2022
Author: W. Diengdoh
Bench: W. Diengdoh
Serial Nos. 03 & 04
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.Petn. No. 29 of 2022 with
Crl.Petn. No. 30 of 2022
Date of Decision: 12.08.2022
Shri. Rajeev Chettri & 2 Ors. Vs. State of Meghalaya
Shri. Rajeev Chettri & 2 Ors. Vs. State of Meghalaya
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S.S. Yadav, Adv.
For the Respondent(s) : Mr. S. Sengupta, Addl. PP.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER (ORAL)
1. The facts and circumstances as is evident from the body of the two petitions under consideration are almost similar, inasmuch as, it involves the petitioner No. 1 and 2 respectively and the petitioner No. 3 in Crl.Petn. No. 29 of 2022 who is the mother of the petitioner No. 2 and again, in Crl.Petn. No. 30 of 2022 the petitioner No. 1 and 2 respectively are the same persons 1 as could be found in Crl.Petn. No. 29 of 2022 while the petitioner No. 3 therein is the father of the petitioner No. 2. The issue being common, this Court accordingly deems it proper to take up these two petitions together and to pass a common judgment and order.
2. On 30.10.2017, an FIR was lodged by Shri. Chikun Deka before the Officer-in-Charge, Rilbong Police Beat House, Shillong informing the police that his minor daughter who was staying with his wife near Shillong Times was kidnapped on 28.10.2017 by one Shri. Rajeev Chettri (petitioner No. 1). On receipt of the same, the police have registered a case being Laban P.S. Case No. 119 (11) of 2017 under Section 363 IPC read with Section 3/4 of the POCSO Act.
3. On investigation being completed, the Investigating Officer filed the charge sheet on 30.06.2018 and the matter was then taken up by the learned Special Judge, (POCSO), Shillong in POCSO Case No. 39 of 2017. It may be mentioned that in course of investigation, the alleged abductor is the petitioner No. 1 herein who was arrested on 03.11.2017 when he was found in the company of the alleged missing minor girl on 02.11.2017 from Byrnihat, Ri-Bhoi District. According to the petitioner, the case is at the stage of framing of charge.
4. Similarly, on 30.02.2018 the petitioner No. 3 in Crl.Petn. No. 29 of 2022 who is the mother of the petitioner No. 2 had filed a missing report before the Incharge, Kenches Trace, Beat House, Shillong informing the 2 police that her daughter aged about 16 years was found missing from home since 02.02.2018 and is suspected to have fled away with the petitioner No. 1 herein. In the said missing report, it was however stated that the missing person was recovered after one week. Here too, the police have registered a case being Laban P.S. Case No. 45 (7) of 2018 after an enquiry was conducted. The petitioner No. 1 was also arrested in connection with the said case on 27.01.2020.
5. The I/O after investigation is completed, has filed a charge sheet on 31.05.2020 stating that there is a prima facie case made out against the accused/portioner No. 1 under Section 363 IPC read with Section 3/4 POCSO Act. The regular case is now pending before the Court of the learned Special Judge, (POCSO), Shillong in POCSO Case No. 37 of 2020.
6. Heard Mr. S.S. Yadav, learned counsel for the petitioners who has submitted that the relationship between the petitioner No. 1 and the petitioner No. 2 is a love relationship for which in view of the then opposition from the family members, they were compelled to elope and on 28.10.2017 they had left Shillong for Guwahati where they stayed at a hotel at Paltan Bazar. On 30.10.2017 they went to Kamakhya Mandir and got married there. However, on 02.11.2017 while on their way to Byrnihat, they met the mother and aunt of the petitioner No. 1 who brought them back to Shillong. The petitioner No. 2 in her statement, has stated that she does not wish to stay with her parents, but wanted to go with the petitioner No. 1.
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7. As far as the facts involved in Crl.Petn. No. 29 of 2022, the records would show that the alleged victim/missing person on being presented before the concerned authority had stated that the petitioner No. 1 was her neighbour and that they have a love relationship and had planned to run away from home, for which they did so in the year 2017, but were soon caught. One month later on 02.02.2018, she again ran away with the petitioner No. 1 and went out of Shillong, first staying at Guwahati and then moving on to NGP (New Jalpaiguri) in West Bengal. However, after one week they came back to Guwahati and stayed there where the petitioner No. 1 started to drive a vehicle as his livelihood. In the meantime, the petitioner No. 2 became pregnant and after six months of the pregnancy, came back to Shillong and stayed at a rented house at Mawiong arranged by the sister of the petitioner No. 1. On 20.11.2019 the petitioner No. 2 delivered a baby girl and after being discharged from the hospital went back to Mawiong and stayed in the same house together with the petitioner No. 1. On 25.01.2020 the police came and arrested the petitioner No. 1 and the petitioner No. 2 was handed over to the said sister of the petitioner No. 1 for safe custody.
8. Learned counsel for the petitioners has submitted that the fact that the petitioner No. 1 and 2 are now living together as husband and wife with a child born to them and at present having been formally married as indicated in the marriage certificate issued by the Priest in-charge Mahadev Khola Dham, Shillong (Annexure-VI to the petition). The family members are now 4 no longer opposing the said union, continuation of the related criminal proceedings against the petitioner No. 1 would only cause hardship to the family. Hence, the petitions under Section 482 Cr.P.C is filed before this Court with a prayer to quash the related FIR and proceedings before the Special Court (POCSO), Shillong.
9. The learned counsel for the petitioners in support of his argument has cited the following cases:
i) Vijayalakshmi & Anr. v. State Rep. By The Inspector of Police, All Women Police Station, Erode: Crl. O.P No. 232 of 2021, para 11 & 18;
ii) Ranjit Rajbanshi v. State of West Bengal & Ors: C.R.A. No 458 of 2018, Calcutta High Court, at para 47, 48 & 49;
iii) Shri. Teiborlang Kurkalang & Anr v. State of Meghalaya & Anr in Crl. Petn. No 62 of 2021;
iv) Kundan & Anr. v. State & Ors, CRL.M.C. 27/2022 and
v) Shembhalang Rynghang & Anr v. State of Meghalaya in Crl.Petn. No. 64 of 2021.
10. Mr. S. Sengupta, learned Addl. PP on behalf of the State respondent has not made any strong objection to the prayer of the petitioners and has also submitted that in similarly situated cases, this Court has allowed the prayer of the petitioners herein and as such, discretion of this Court is sought to be exercised as deemed fit and proper.
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11. This Court after hearing the learned counsels for the parties and on the facts and circumstances as stated above, has no doubt that the case of the petitioner No. 1 and petitioner No. 2 is of a young couple who are now bound by the bond of marriage though the physical consummation had occurred when the petitioner No. 2 was still a minor. The issue of kidnaping would not arise at this point of time as the petitioner No. 2 who was allegedly kidnapped was eventually found in the company of petitioner No. 1. The only hindrance in the way of the petitioner No. 1's freedom is the pending proceedings against him under the relevant sections of the POCSO Act.
12. This Court in the case of Teiborlang Kurkalang (supra) at para 6 has observed as follows:
"6. Though, the POCSO Act has been rightly enacted to safeguard children from sexual exploitation, but in the peculiar facts and circumstances of the case of the petitioners herein, the rigors of the said Act may not be applied to their case and the converse would only result in the breakdown of a happy of the POCSO Act, which has been enacted to primarily ensure that a child is not subjected to sexual assault or sexual harassment. However, in the case of the petitioners herein, the fact remains that the two are living as husband and wife and had willingly cohabited without any pressure or coercion, therefore there has not been any occasion where sexual assault has taken place, that is, an act of violence or use of force or without the voluntary participation of both parties. Another aspect of the matter is that now that a child is born to them, raising up of the child is the responsibility of both parents, which will be greatly impaired if the father is in jail."
13. The observations made by the Hon'ble High Court of Madras in the case of Vijayalakshmi (supra) at para 11 and 18 of the same are also relevant 6 for consideration in these instant petitions, the same of which are reproduced below as:
"11. ...There can be no second thought as to the seriousness of offences under the POCSO Act and the object it seeks to achieve. However, it is also imperative for this Court to draw the thin line that demarcates the nature of acts that should not be made to fall within the scope of the Act, for such is the severity of the sentences provided under the Act, justifiably so, that if acted upon hastily or irresponsibly, it could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous. What came to be a law to protect and render justice to victims and survivors of child abuse, can, become a tool in the hands of certain sections of the society to abuse the process of law.
18. In the present case, the 2nd Petitioner who was in a relationship with the 2nd Respondent who is also in his early twenties, has clearly stated that she was the one who insisted that the 2nd Respondent take her away from her home and marry her, due to the pressure exerted by her parents. The 2nd Respondent, who was placed in a very precarious situation decided to concede to the demand of the 2nd Petitioner. Thereafter, they eloped from their respective homes, got married and consummated the marriage. 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 who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act. An adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop, should essentially receive the support and guidance of 7 their parents and the society at large. 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."
14. Again, in the case of Ranjit Rajbanshi (supra) the observation made at para 47, 48 and 49 therein can also be applied to the case in hand. The said para reads as follows:
"47. In the present case, the victim girl was admittedly 16 ½ years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as 'consent' as such, the expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression 'penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view 8 the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim.
48. As such, it cannot be said that the accused was guilty of penetrative sexual assault, as such, since here the act of penetration, even if true, would have to be taken not as an unilateral act of the accused but a participatory moment of passion involving the participation of both the victim and the accused.
49. Although the question of consent does not arise in case of a minor, in order to attract Section 376(1) of the IPC, it had to be established that the alleged offence was committed against the will of the victim. Read in conjunction, the provisions of Section 376 of the IPC and Section 3 of the POCSO Act ought to be construed on a similar footing and cannot incriminate the accused for a voluntary joint act of sexual union."
15. This Court is in respectful agreement with the above observations made by the Hon'ble High Court of Madras and the Hon'ble High Court of Calcutta respectively and is of the considered opinion that the same principles can be applied to the case of the petitioners herein. This being the case, on an overall appreciation of the facts and circumstances, the proceedings against the petitioner No. 1 would not serve the ends of justice if the same is not interfered by this Court in the exercise of its inherent power under the Code. The other citations relied upon by the petitioners need not be mentioned as they speak of the same principle.
16. Accordingly, the petitions are found fit to be allowed and consequently, the related FIR and also the related proceedings before the Special Court (POCSO), Shillong in POCSO Case No. 39 of 2017 and 37 of 2020 respectively are hereby set aside and quashed. 9
17. In view of the above, the petitions are hereby disposed of. No costs.
Judge Meghalaya 12.08.2022 "D. Nary, PS"
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