Madras High Court
Anandan vs State on 2 September, 2022
Author: N.Sathish Kumar
Bench: N. Sathish Kumar
Crl. O.P. No.20239 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 2/9/2022
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. No.20239 of 2022
and
Crl.M.P.Nos.13296 and 13297 of 2022
1. Anandan
2. Sujatha
3. Thulasi
4. Govindammal
5. Dinesh ... Petitioners
Vs
1. State
rep. By The Inspector of Police
All Women Police Station
Thirupathur
Thirupathur District.
2. Dhanalakshmi
District Social Welfare Officer
District Social Welfare Office
Kandili Block
Thirupatur District. ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C. to
call for the records in connection with Spl.S.C.No.42 of 2022 pending on the
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Crl. O.P. No.20239 of 2022
file of the learned Special Court for Exclusive trial of Cases under POCSO Act,
Vellore, Vellore District and quash the criminal proceeding.
For Petitioner ... Mr.E.Kannadasan
For respondents ... Mr.Leonard Arul Joseph Selvam
Government Advocate
for R.1.
-----
ORDER
This Criminal Original Petition has been filed to quash Spl.S.C.No.42 of 2022 pending on the file of the learned Special Court for Exclusive trial of Cases under POCSO Act, Vellore, Vellore District, for the offence under Sections 376 (2) (a) and 109 of the Indian Penal Code and Sections 9 and 10 of Prohibition of Child Marriage Act, 2006, Sections 5 (i), (ii), (l), (n), 6, 16 and 17 of the Protection of Child from Sexual Offences Act, 2012.
2. Brief facts which are necessary for the disposal of this Criminal Original Petition are as follows:-
First and second petitioners are father and mother and petitioners 3 and 4 are father-in-law and mother-in-law and fifth petitioner is the husband of the Page No:2/12 https://www.mhc.tn.gov.in/judis Crl. O.P. No.20239 of 2022 victim by name Lavanya, aged about 17 years and her Date of Birth is 17/1/2006.
3. On 26/7/2021, the second respondent/defacto complainant received an information through the Child Help Line 1098 about the child marriage performed by the petitioners 1 to 4 with the fifth petitioner and victim. Hence, on 31/7/2021, she informed to the Administrator of the Women Integrated Service Centre and a case was registered in Crime No.13 of 2021 for the offence under Section 11 of Child Marriage Act.
4. During investigation, on 2/11/2021, the first respondent Police, received an intimation from the Doctor at B.M.Hospital, Thirupathur that the victim, who was a minor, admitted in the hospital for delivery of child. On enquiry, she submitted that the petitioners 1 to 4 joined together and performed her marriage with the fifth petitioner. After recording her statement, case was altered from Section 11 of Protection of Child Marriage Act into Sections 4, 5 (j (ii) r/w. Section 6 of Protection of Children from Sexual Offence Act and Sections 9 and 11 of Protection of Child Marriage Act. Again, it was altered into Sections 376 (2) (n) and 109 of the Indian Penal Code, Sections 9 and 11 Page No:3/12 https://www.mhc.tn.gov.in/judis Crl. O.P. No.20239 of 2022 of Protection of Child Marriage Act and Sections 5 (j) (ii) (l) (n) r/w. Sections 6, 16 and 17 of Protection of Children from Sexual Offence Act.
5. Today, when the matter is taken up for hearing, petitioners, victim along with her eight months old baby and Ms.P.Adhilakshmi, WSSI (2420), AWPS TPT, Tirupathur District were present before this Court.
6. On enquiry, the petitioners submitted that since the victim has attained majority, marriage of the fifth petitioner and victim was registered. Birth certificate of the victim girl is produced before this Court. After marriage, the fifth petitioner and the victim girl are living together as husband and wife. Hence the petitioners pray this Court to quash Spl.S.C.No.42 of 2022, pending on the file of the learned Special Court for Exclusive Trial of Cases under POCSO Act, Vellore, Vellore District.
7. On enquiry, the victim girl submitted that the petitioners 1 to 4 joined together and performed her marriage with the fifth petitioner. She is living happily in her in-laws house with her eight months old baby. Page No:4/12 https://www.mhc.tn.gov.in/judis Crl. O.P. No.20239 of 2022
8. 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.
9. 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 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 Page No:5/12 https://www.mhc.tn.gov.in/judis Crl. O.P. No.20239 of 2022 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 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 Page No:6/12 https://www.mhc.tn.gov.in/judis Crl. O.P. No.20239 of 2022 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 crossed the age of presumable infatuation or innocence”.
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10. In the present case, the fifth petitioner and the victim girl got married, with the consent of both the families. 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 defence 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 object 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 Page No:8/12 https://www.mhc.tn.gov.in/judis Crl. O.P. No.20239 of 2022 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.
11. 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.
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12. In the present case, the offences in question are purely individual/personal in nature. It involves the fifth petitioner and the victim girl and their respective families only. It involves the future of two young persons. Quashing the proceedings, will not affect any overriding public interest in this case and it will in fact pave way for the fifth 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 fifth petitioner, victim girl and their parents as well.
13. In view of the above, this Court is inclined to quash the criminal proceedings in Special Case No.42 of 2022 on the file of the learned Special Court for Exclusive Trial of Cases under POCSO Act, Vellore, Vellore District, in exercise of its jurisdiction under Section 482 of the Criminal Procedure Code.
14. Accordingly, this Criminal Original Petition is allowed and the Page No:10/12 https://www.mhc.tn.gov.in/judis Crl. O.P. No.20239 of 2022 criminal proceedings in Special Case No.42 of 2022 on the file of the learned Special Court of Exclusive Trial of Cases under POCSO Act, Vellore District, is quashed. Petition to quash on the basis of the compromise filed shall form part of the records.
Consequently, the connected Criminal Miscellaneous Petitions are closed.
2/9/2022 Index : Yes / No Internet: Yes Speaking/non speaking order mvs.
To
1. The Special Court of Exclusive Trial of Cases under POCSO Act, Vellore District.
2. The Inspector of Police All Women Police Station Thirupathur Thirupathur District.
3. The Public Prosecutor Madras High Court.
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