Madras High Court
Karthik vs State Rep By on 8 July, 2022
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
CRL.O.P.No.14458 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.07.2022
CORAM:
THE HON'BLE MR.JUSTICE N.SATHISH KUMAR
CRL.O.P.No.14458 of 2022 and
CRL.M.P.No.7952 of 2022
Karthik ... Petitioner
Versus
1.State rep by,
Inspector of Police,
Podanur Police Station,
Coimbatore.
2.Sri Santhoshini Devi ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to call for the records and to quash the Charge
Sheet in Spl CC 75 of 2020 on the file of Special Sessions Court to deal
with POCSO Act cases of Coimbatore.
For Petitioner : Mr.M.Saravanakumar
For R1 : Mr.Leonard Arul Joseph Selvam,
Government Advocate (Crl. Side)
For R2 : Mr.P.Murali
*****
Page No.1 of 12
https://www.mhc.tn.gov.in/judis
CRL.O.P.No.14458 of 2022
ORDER
This Criminal Original Petition has been filed to quash the proceedings in Special C.C.No.75 of 2020, on the file of the Special Court to deal the cases under POCSO Act, Coimbatore, for offence under Sections 5(l), 5(j)(ii) & 6 of Protection of Children from Sexual Offence Act, 2012 and Section 9 of the Prohibition of Child Marriage Act, 2006 and Sections 366 & 376(3) of IPC and Section 35 of Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016.
2.The allegations against the petitioner is that the petitioner had kidnapped the 2nd respondent/victim girl, who is aged about 14 years at the time of occurrence and married her and also changed her date of birth in her Aadhaar card.
3.The petitioner and the 2nd respondent/victim girl are present before this Court and they were identified by their counsels. In order to identify the respective parties, they have also produced the copies of the Page No.2 of 12 https://www.mhc.tn.gov.in/judis CRL.O.P.No.14458 of 2022 Aadhaar Card and it is made part of the record. The 2nd respondent/victim girl and the petitioner filed the Joint Compromise Memo before this Court to the effect that the petitioner and the 2 nd respondent/victim girl got married and are living jointly and they are having one male child out of their wedlock and the parents of the 2nd respondent also accepted them and hence, submitted that the proceedings against the petitioner may be quashed.
4.The 2nd respondent/victim girl was present along with her child before this Court at the time of hearing. This Court examined the 2nd respondent/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. The 2nd respondent/victim girl in her statement recorded under Section 161(3) Cr.P.C., stated that the petitioner had never kidnapped her to anywhere.
5.The learned Additional Public Prosecutor appearing on behalf of Page No.3 of 12 https://www.mhc.tn.gov.in/judis CRL.O.P.No.14458 of 2022 the 1st 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.
6.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 Page No.4 of 12 https://www.mhc.tn.gov.in/judis CRL.O.P.No.14458 of 2022 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 Page No.5 of 12 https://www.mhc.tn.gov.in/judis CRL.O.P.No.14458 of 2022 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 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, Page No.6 of 12 https://www.mhc.tn.gov.in/judis CRL.O.P.No.14458 of 2022 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”.
7.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].
8.In light of the above judgments, in the present case the petitioner and the 2nd respondent got married and they are now having a child and the parents of 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 Page No.7 of 12 https://www.mhc.tn.gov.in/judis CRL.O.P.No.14458 of 2022 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. 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 Page No.8 of 12 https://www.mhc.tn.gov.in/judis CRL.O.P.No.14458 of 2022 law such as the POCSO Act.
9.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 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.
10.In the present case, the offences in question are purely Page No.9 of 12 https://www.mhc.tn.gov.in/judis CRL.O.P.No.14458 of 2022 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 the proceedings pending will only swell the mental agony of the petitioner, victim girl and their parents as well. As far as the offence under Section 35 of Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 is concerned, there is no material to show that the petitioner changed the date of birth of the 2nd respondent in her Aadhar Card.
11.In view of the above, this Court is inclined to quash the criminal proceedings in Special C.C.No.75 of 2020 on the file of the Special Court to deal the cases under POCSO Act, Coimbatore in exercise of its jurisdiction under Section 482 of the Criminal. Page No.10 of 12 https://www.mhc.tn.gov.in/judis CRL.O.P.No.14458 of 2022
12.Accordingly, this Criminal Original Petition is allowed and the criminal proceedings in Special C.C.No.75 of 2020 on the file of the Special Court to deal the cases under POCSO Act, Coimbatore, is quashed. Consequently, the connected Miscellaneous Petition is closed.
08.07.2022 Index: Yes/No Internet: Yes/No vv2 To
1.The Special Court to deal the cases under POCSO Act, Coimbatore.
2.The Inspector of Police, Podanur Police Station, Coimbatore.
3.The Public Prosecutor, High Court, Madras.
Page No.11 of 12 https://www.mhc.tn.gov.in/judis CRL.O.P.No.14458 of 2022 N.SATHISH KUMAR, J.
vv2 CRL.O.P.No.14458 of 2022 08.07.2022 Page No.12 of 12 https://www.mhc.tn.gov.in/judis