Karnataka High Court
Aarush Jain vs State Of Karnataka on 9 September, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.3710 OF 2022
BETWEEN:
AARUSH JAIN
AGED ABOUT 16 YEARS
S/O DEVARAJ JAIN
RESIDING AT NO.13
3RD CROSS, 3RD MAIN,
GANGANAGAR
BENGALURU - 560 032.
THROUGH HIS NEXT FRIEND
AND FATHER DEVARAJ JAIN M.,
S/O LATE MANOHAR LAL
AGED ABOUT 45 YEARS
RESIDING AT NO.13
3RD CROSS, 3RD MAIN
GANGANAGAR
BENGALURU - 560 032.
... PETITIONER
(BY SRI PRATEEK CHANDRAMOULI A/W
SMT.VIDYASHREE K.S., ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH RT NAGAR PS
R.T.NAGAR - 560 032
REPRESENTED BY THE SPP OFFICE
HIGH COURT OF KARNATAKA
2
BENGALURU - 560 001.
2. SRI MAHADEVAPPA
S/O SANNAMADAIAH
AGED ABOUT 49 YEARS
R/AT NO.1323, MANJUNATHA LAYOUT
R.T.NAGAR, BENGALURU - 560 032.
... RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1;
SRI M.MAHENDRA, ADVOCATE))
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE REGISTRATION OF CRIME IN FIR
NO.259/2021 REGISTERED BY THE RESPONDENT NO.1 POLICE
PENDING ON THE FILE OF THE 32nd ACMM, NRUPATUNGA ROAD,
BANGLAORE (NOW BEFORE THE J.J BOARD, BANGALORE)
BANGALORE FOR THE OFFENCE P/U/S 363 OF IPC.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 17.06.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Parties to the lis have knocked the doors of this Court in the subject petition seeking annulment of proceedings against the petitioner, a boy of 16 years at the time of the incident who has embroiled himself into the web of the provisions of the offences punishable under the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short). The annulment is sought on account of a settlement arrived at between them.
32. Shorn of details, facts necessary are as follows:
The petitioner, a boy of 16 years at the time of the incident in First Pre-University grade in the discipline of Commerce gets acquainted with a co-student. Both of them come to be in love or claim to be in love. On 22-11-2021, a compliant is registered before the jurisdictional Police by the present complainant that his minor daughter one ***** did not return home after going to the College. On registration of the complaint, the Police filed a case under Section 363 of the IPC for kidnapping against unknown persons. The petitioner's father also had approached the jurisdictional police and registered a complaint that his son also did not come back home from the College which also was registered in Crime No.260 of 2021 for offence punishable under Section 363 of the IPC. Both the complaints were registered as FIRs 259 of 2021 and 260 of 2021.
3. The present case concerns FIR in Crime No.259 of 2021.
The complainant's daughter is the one alleged to have been kidnapped in Crime No.259 of 2021. The Police Officers investigating along with a family member of a minor boy and father 4 of the minor girl found the couple at Chickmagalur and got them back to Bangalore. After bringing the couple back, the Police produced the minor boy before the learned Magistrate and sought remand of the boy to their custody for a period of 7 days. A preliminary report was submitted by adding offences under Section 376 of the IPC and Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO' for short) along with Section 363 of the IPC. The Court, on perusing the preliminary report, remanded the boy to 3 days in custody. The charge sheet is yet to be filed in the matter.
4. On filing the preliminary report and continuation of investigation, it appears, that the family members of both the children who were aged 16 years at the time when the incident happened, sat together, settled the issue among themselves and reconciled their differences. After arriving at such settlement, they have approached this Court in the subject petition along with memorandum of settlement seeking to settle the issue notwithstanding the fact that there are offences punishable under Section 376 of the IPC or under the POCSO Act.
55. Heard Sri Prateek Chandramouli, Smt.Vidyashree.K.S., and Smt.Keerthana Nagaraj, learned counsel appearing for the petitioner, Smt. K.P.Yashodha, learned High Court Government Pleader appearing for respondent No.1 and Sri M.Mahendra, learned counsel appearing for respondent No.2.
6. The learned counsel appearing for the petitioner and the learned counsel representing the 2nd respondent have no qualm against each other in the light of a compromise or a settlement arrived at between them concerning their respective children who are minors.
7. The learned High Court Government Pleader would however vehemently argue and contend that the offence punishable is under Section 376 of the IPC and the POCSO Act, which cannot be terminated by way of a settlement arrived at between the parties on the ground that the boy and the girl were minors at the time of the incident and minors even as on date. She would take this Court to Section 164 Cr.P.C. statement given by the victim-girl to contend that it was not a consensual act, but the statement 6 would reveal that she was allured into doing all, that has become the ingredients of the offences and therefore, would submit that it is a matter of trial for the petitioner, though juvenile, to come out clean.
8. The learned counsel appearing for the petitioner would however refute the submissions of the learned High Court Government Pleader to contend that both the victim and the petitioner were of 16 years age at the time when the incident happened and had no knowledge about the consequences which they would to face for the acts that are committed allegedly out of romantic love and would place reliance upon close to eight orders where several constitutional Courts have quashed the proceedings against the minor boy alleged of similar offences on the ground of parties arriving at a settlement and the fact that consequences of such an act would not be aware of, to both the accused and the victim.
9. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
710. The aforesaid facts are not in dispute. Before embarking upon consideration of the settlement, for termination of proceedings against the petitioner, I deem it appropriate to notice various orders passed by the constitutional Courts closing the proceedings on identical terms where the accused and the victim were both minors.
11. A three Judge Bench of the Apex Court in the case of GIAN SINGH V. STATE OF PUNJAB1 observes the plenitude of power of this Court for its exercise under Section 482 of the Cr.P.C.
and holds that cases can be closed on account of settlement barring heinous offences, the Apex Court has held as follows:
"61. The position that emerges from the above discussion can be summarised thus : the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz. : (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed.1
(2012) 10 SCC 303 8 However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime.
Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
(Emphasis supplied) 9 A three Judge Bench of the Apex Court again in PARBATBHAI AAHIR V. STATE OF GUJARAT2 has held as follows:
"16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:
16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.
16.2. The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.
16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised (i) to secure the ends of justice, or (ii) to prevent an abuse of the process of any court.
16.5. The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the 2 (2017) 9 SCC 641 10 dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. This extract is taken from Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641 : (2018) 1 SCC (Cri) 1 :
2017 SCC OnLine SC 1189 at page 653 16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute.
Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned.
16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.
16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be 11 justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
(Emphasis supplied) The High Court of Bombay 3 by its judgment dated 21-07-2020 has held as follows:
"5. Considering the nature of accusations made by the non-applicant No.2, the fact that the victim boy, though minor, was aged about 17 years at the time of the incident and as the parties have amicably worked out the matter and the trial has not yet commenced, we are of the view that no fruitful purpose would be achieved by keeping the trial pending and interests of justice would be sub-served by quashing the proceedings subject to utilising the amount deposited by the applicant and non-applicant No.2 for some appropriate purpose."
(Emphasis supplied) A Division Bench of High Court of Gujarat 4 in its judgment dated 29-06-2020 has held as follows:
"7. We noticed that the Respondent No.5 is himself a minor and is yet to be found. we are also at pain to learn that though himself is a minor, has chosen to take away the corpus who is a minor, lending himself in the net of law, particularly of the Protection of Children from Sexual Offences Act (POCSO Act).
7.1 This Act is brought on the statute book with laudable objectives, with a view to protect the girl child in the society, with more and more offences affecting the girl children.3
Criminal Application No.298 of 2020 4 R/Special Criminal Application No.765 of 2020 12 7.2 we also notice that young boys who themselves are not major, many a times without realising the consequences of their act, or many a times actuated by frenzy of youth, with careless approach towards stringent laws eventually label themselves as offenders in the matters of POCSO, and face serious consequences of rigorous punishment prescribed under the law.
7.3 It became expedient for us to make a specific reference of this aspect, having noticed this in many Petitions of Habeas Corpus. It is therefore, expressed that right kind of understanding needs to be given, in the form of legal awareness amongst the children and the college students so that the society can simultaneously protect very young minor R/SCR.A/765/2020 ORDER boys, who due to their lake of understanding of law, turn into the offenders in serious matters.
7.4 The Superintendent of Police, Mehsana ensures to take up this issue with the anti Human Trafficking cell and the District Legal Services Authority for creating awareness amongst the youngsters."
The High Court of Madras5 in the judgment dated 27-01-2021 has held as follows:
"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 5 Criminal O.P.No.232 of 2021 and Criminal M.P.No.109 of 2021 13 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.
12. As rightly recognized by the Learned Single Judge of this Court in Sabari's Case (cited supra), incidences where teenagers and young adults fall victim to offences under the POCSO Act being slapped against them without understanding the implication of the severity of the enactment is an issue that brings much concern to the conscience of this Court. A reading of the Statement of Objects and Reasons of the POCSO Act would show that the Act was brought into force to protect children from offences of sexual assault, sexual harassment and pornography, pursuant to Article 15 of the Constitution of India, 1950 and the Convention on the Rights of the Child. However, a large array of cases filed under the POCSO Act seems to be those arising on the basis of complaints registered by the families of adolescents and teenagers who are involved in romantic relationships with each other. The scheme of the Act clearly shows that it did not intend to bring within its scope or ambit, cases of the nature where adolescents or teenagers involved in romantic relationships are concerned.
13.This Court, therefore, deems it fit and necessary to take a moment to delve into an important aspect, the awareness of which is crucial in understanding and dealing with cases of this nature. It is crucial to be aware of the science and psychology of adolescence and young adulthood at this juncture. 'This is because social and biological phenomena are widely recognized as determinants of human development, health, and socio-economic attainments across the life course, but our understanding of the underlying pathways and processes remains limited. Therefore, a "biosocialapproach" i.e. one that conceptualizes the biological and social as mutually constituting, and draws on models and methods from the biomedical and social/behavioral sciences, is required.' (McDade, T. W., & Harris, K. M.(2018). The Biosocial Approach to Human Development, Behavior, and Health 14 Across the Life Course. The Russell Sage Foundation journal of the social sciences: RSF, 4(4), 2-26.)
14.The UN has come to formally define 'adolescence' as the period between 10 and 19 years of age and 'young people' between 10 to 24 years of age, in the South- East Asia Region. Adolescence and young adulthood form a continuum for many development processes, but there are also unique aspects of young adulthood. Scientists who study brain development have spent much time looking at adolescents than at young adults. By the time people become young adults, significant aspects of their neurobiology have reached adult levels. However, their brains also continue to change in part because of continuing brain development, and in part because behavior is always remodeling the brain. Brain plasticity is evident throughout the lifespan but different kinds of plasticity come to the fore at different stages. For example, from childhood through adulthood, the gray matter in the brain, which contains neurons, thins as it loses synaptic connections and it is a method that the brain uses to sculpt itself to a particular environment. Studies of particular brain regions show continued changes after adolescence. It has been observed that the pathways that connect different parts of the brain also change over time. The decision-making ability is a reflection of the development of the superior longitudinal fasciculus, which is involved in cognition and executive function. This superior longitudinal fasciculus continues to develop throughout the young adult years. Profound and protracted physical, biological, and neurological changes linked to puberty occur throughout adolescence and early adulthood. Hormonal changes prompt a literal remodeling of cortical and limbic circuits in the brain that were previously organized in the perinatal period and that, in combination with adolescent social experiences and contexts, affect general cognition, decision making, and behavior into adulthood. (Sisk CL, & ZehrJL (2005). Pubertal hormones organize the adolescent brain and behavior. Frontiers in Neuroendocrinology, 26(3-4), 163-174.)
15. It is only relatively recently that neurobiologists have started to probe into the neural basis of one of the 15 most powerful and exhilarating states known to humans, namely love. Studies largely show that the basic human motivations and emotions arise from distinct systems of neural activity and that these systems derive from mammalian precursors. Thus, it is only natural that this mechanism is also active in Homo Sapiens i.e. humans.
Adolescence is associated with many psychosocial and developmental challenges, including the processing of intense emotions and "first loves". (Arnett J.J. Adolescence and Emerging Adulthood. Pearson Education Limited; New York, NY, USA: 2014.) It is now well evidenced that adolescent romance is an important developmental marker for adolescents' self-identity, functioning and capacity for intimacy. Developmental-contextual theories of adolescent romantic stages also provide a framework for how romantic relationships assist young adults with addressing their identity and intimacy needs. Therefore, the age of adolescence as can be seen evidently, is one associated with an amassing change in the neurological, cognitive and psychological systems of a person and one of the most important aspect is that the individual tries to establish their identity, develops emotional and biological needs during this period as a result of which the individual tends to look for new relationships, bonding and partnership. It is also important to acknowledge in addition to this, the vast exposure that is available to adolescents and youth in the form of digital content that play a major role in influencing their growth and identity.
16.In light of the above, it is only natural that there are cases of the above-mentioned nature that are on the rise at present and it does not help matters to avoid acknowledging that the society is changing and influencing people's identity and cognition, constantly. Therefore, painting a criminal colour to this aspect would only serve counter-
productively to understanding biosocial dynamics and the need to regulate the same through the process of law.
17.This Court is not turning a blind eye to cases where the victim or survivor may, under the effect of trauma that they have undergone, studies on which show that they might 16 tend to reconcile with the same by blaming themselves or convincing themselves that the element of consent was infact present. Nor is this Court scientifically justifying in toto, the genuineness or predicament of the accused in every case where it appears that the accused and victim child have been in a romantic relationship. That will depend on the facts and circumstances of each and every case.
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 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 17 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.
19. 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 second respondent. 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.
20. In the present case, the offences in question are purely individual/personal in nature. It involves the 2nd Petitioner and the 2nd Respondent and their respective families only. It involves the future of two young persons who are still in their early twenties. The second respondent is working as an Auto driver to eke his livelihood. Quashing the proceedings, will not affect any overriding public interest in this case and it will in fact pave way for the 2nd Petitioner and the 2nd Respondent 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 victim girl and her mother and not to forget the 2nd Respondent as well.
21. In view of the above, this Court is inclined to quash the criminal proceedings in Special S.C.No.24 of 2018 18 on the file of the learned Sessions Judge, Mahila Court (Fast Track Mahila Court) Erode in exercise of its jurisdiction under Section 482 of the Criminal Procedure Code, 1973.Accordingly, the same is quashed and this Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is also closed."
(Emphasis supplied) Just before the judgment of the High Court of Madras was rendered quoted hereinabove, the High Court of Madras in the case of SABARI v. INSPECTOR OF POLICE AND OTHERS 6 -while considering closure of the case in a matter involving the offence under the POCSO Act has held as follows:
"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 implication of the severity of the enactment.
.... ... ...
38. 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 rigours of POCSO Act. Once the age of the girl is established in such relationship as below 18 years, the boy involved in the relationship 6 2019 SCC Online Mad 18850 19 is sure to be sentenced 7 years or 10 years as minimum imprisonment, as the case may be."
(Emphasis supplied) In a judgment rendered on 21-02-2022 the High Court of Delhi7 considering an identical situation has held as follows:
"6.The purpose of Section 482 Cr.P.C is primarily to secure the ends of justice. In Gian Singh v. State of Punjab, (2012) 10 SCC 303, the Supreme Court has observed as under:"55. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.56.
It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section
482. No precise and inflexible guidelines can also be provided."(emphasis supplied)
8.Considering the fact that the whole life of Petitioner No.1 and Petitioner No.2 and their child would be ruined, this Court asked the learned APP as to whether she has any objections if this Court 7 Crl.M.C.27 of 2022 20 exercises its jurisdiction under Section 482 Cr.P.C and quash the FIR. Learned APP for the State very fairly and taking humanitarian approach stated that she has no objections if the instant FIR is quashed.
9.In view of the peculiar facts and circumstances of this case, this Court is inclined to quash the FIR. Resultantly, FIR No.275/2019 dated 30.10.2019 registered at Police Station Delhi Cant t for offences under Section 363/366/376 IPC and Section 6 of the POCSO Act and the proceedings emanating there from are hereby quashed."
(Emphasis supplied)
12. In the light of the afore-quoted judgments, the compromise so arrived at between the parties is required to be noticed. A joint affidavit of compromise/compounding of offences in Crime No.259 of 2021 filed reads as follows:
1. We state that we are the father of the Child In Conflict With Law (CICWL in short) and the father of the victim respectively and we are well conversant with the facts of the above case.
2. We state that on 21.11.2021, the complainant approached the jurisdictional police station stating that his minor daughter, did not return home after going to college. Subsequent to this complaint, the respondent Police registered in Crime No.259/2021 for offence punishable under section 363 of the IPC against unknown persons. We state that CICWL's father also approached the jurisdictional police and lodged a complaint stating that his son did not come back home from college and subsequently lodged an FIR bearing No.260/2021 against unknown persons as for the offence punishable u/s 363 of the IPC, but since the law does not recognize that a woman is capable of kidnapping, the Respondent police began their investigation in Crime No.259/2021.21
3. We state after tracking the phones of the Petitioner/CICWL and the victim, both of them were found together in Chikkamagaluru in a bus enroute to Bangalore.
4. We state that the police officers rushed to the spot along with the uncle of the minor boy and the father of the minor girl to Chikkamagaluru and got them back to Bangalore. After bringing them to Bangalore the Respondent No.1 police produced the CICWL before the Hon'ble Magistrate and sought to remand the minor boy to custody for a period of 7 days. In the preliminary report submitted to the Hon'ble Court, it was seen that the offences of S.376 of IPC and S.5 & 6 of the POCSO Act was added for investigation along with the offence of 363 of IPC. On perusing the said report, the Hon'ble Court remanded the minor boy/CICWL to 3 days in custody.
5. We state that since the Petitioner/CICWL and the victim were both minors i.e., 16 years of age, the CICWL was produced before the Juvenile Justice Board wherein bail was granted to the CICWL vide order dated 30-11-2021.
6. We state that till date no chargesheet has been filed and the trial has not commenced.
7. We state that the fact that needs to be borne in mind is that in the present case both the Petitioner/CICWL and the Victim are juveniles. In theses circumstances, they deserve to be given a chance to reform themselves rather that to condemn or to force them to face trial especially when parties have since compromised and victims belong to the same place and a compromise would help them maintain cordial relations in future rather than being at logger heads during their entire life.
8. We state that the Petitioner/CICWL and Victim are both friends and were classmates during their schooling. This entire episode is nothing but a friendship gone sour. The 22 Petitioner/CICWL and victim both are both in their formative years and are in the adolescent stage where they are discovering new feelings and emotions. The CICWL and Victim were good friends and the Petitioner/CICWL who is also a minor had no intention to kidnap the minor victim or commit any sexual offences envisaged under the POCSO Act.
9. We state The Protection of Children from Sexual Offences (POCSO) Act of 2012, is not intended to bring within its ambit the romantic relationships between adolescents or teenagers. Yet, many youngsters are getting prosecuted under the law and this is one such example of minors being the victims to the system.
10. We state that the legal possibility of quashing a case booked under non-compoundable offences, it could be done since offences were purely individual/personal in nature and that there was no public harm that would be caused in quashing the case.
11. We state that both the Petitioner/CICWL and the Victim are students of First P.U.C and if the investigation is proceeded, both the children's future will be ruined and their education and reputation will be spoiled and the same will become a blot and scar on their lives forever and that their as education, marriage etc, will be hampered.
12. We state that no such incident has transpired to implicate the Petitioner/CICWL in a case with offences punishable under POCSO Act or the Indian Penal Code.
The children innocent and have no sense of right or wrong. The children of both parties have committed a mistake by running away without informing their parents which has escalated to a cae being registered. We state that if this case continues, it will have a bearing impact on the lives and futures of the children. This incident will remain a black spot in the entire life-time of the children and this dark memory will have impact the mental well-
23being of both the children. We state that the interest of the CICWL and victim is paramount and keeping this in mind, we intend to settle the above case by entering into a compromise.
13. We state that the Father of the Petitioner/CICWL i.e., Sri.Devaraj M, herein and Sri.Mahadevappa have amicabally settled their disputes without any undue force. We have reached an understanding that our children's education, career and future is more important to us than pursuing the case. We do not want too go through the ordeal of trial. We state that we have no other further demands or requirements from each other and this affidavit embarks upon the final settlement of the instant case.
14. We state that agree to take all reformative measures for the betterment, and improvement of the interest of the Petitioner/CICWL and the Victim respectively, to ensure reformation in the attitude, mental wellbeing and characteristic development.
15. We state that we agree to not proceed with the proceedings or recall or reinstate the crime registered in Crime No.0259/2021 in any manner whatsoever from this day on.
16. We agree that from this day on, no attempts or efforts shall be made to implicate the Petitioner/CICWL or the Victim to any of the allegations made in the Complaint dated 21-11- 2021 and in relation to any such similar allegations which shall hamper the peaceful life, education etc of the CICWL and the Victim.
17. We state that this agreement is the full and final settlement of the instant case and that both parties shall not involve in any acts or instigate any person to cause any act/acts which shall cause any trouble, disturbance, harm, injury, bodily hurt or injury, mental distress etc whatsoever to the Petitioner/CICWL and to the Victim.
2418. We state the we have buried our differences and have amicably settled the disputes between the victim and Petitioner/CICWL.
19. We state that this compromise has been entered into by their free will and wish and that we are not under duress or coercion to agree to the covenants of this affidavit. We state that there has been no undue influence or coercion to agree to this compromise and that this compromise is genuine and has been effected voluntarily. We therefore pray that this Hon'ble Court be pleased to take this affidavit on record and treat that the matter as having been settled and quash the proceedings, to secure the ends of justice.
20. We are filing this Affidavit to put an end to the entire issue with a prayer to this Hon'ble Court to consider the entire facts and circumstances of the case and exercise its equitable jurisdiction and quash the proceedings.
21. Under the present facts and circumstances, the continuation of the prosecution would be nothing but an abuse of the process of law and therefore, pray that this Hon'ble Court exercises its extraordinary jurisdiction, to secure the ends of justice and quash the proceedings as having been settled mutually and without any intention to reopen the case in the future.
22. We state that we have authorized ours advocate to appear on our behalf and file this affidavit and pray before this Hon'ble Court for quashing of the criminal proceedings against the Petitioner.
23. What is stated above are all true and correct to the best of our knowledge, information and belief."
(Emphasis added) 25 The issue now is, in the light of several orders passed by the constitutional Courts quashing the proceedings against those accused who were minors at the time of offences, whether the present case deserves quashment of proceedings qua the accused boy is required to be noticed.
13. The settlement arrived at between the parties who are the legal guardians of both the victim and the accused in unequivocal terms indicates that both the victim and the accused were classmates, friends and infatuated to each other and had therefore indulged in such acts, the petition narrates that they were in love, this led them to travel to Chickmagalur. The statement rendered by the accused under Section 164 of the Cr.P.C. though in certain hues indicates that the petitioner wanted to lure the complainant into sexual relations, but the further narration in the complaint is that the victim and the petitioner who were both children of adolescent age of 16 years indulged in sexual relation.
The parents of both the victim and the petitioner were made known of these incidents once the petitioner and the victim were traced.
The statement under Section 164 of the Cr.P.C. does not in any 26 manner indicate that the petitioner had forcibly indulged in any activity upon the victim. It is an admitted fact that the petitioner and the victim were close friends and were infatuated to each other. Several Courts as quoted hereinabove have considered the impact of hauling an under aged boy into the web of the provisions under the POCSO Act has clearly held that POCSO Act was not meant to punish the accused who were in love with the victims therein.
14. It is a known fact which bear consideration in the aforequoted judgments, in physiological parlance, that adolescence of a child is between 10 to 19 years and young age is said to be between 20 to 24 years. Therefore, adolescence is a continuum of development process in the life of a child metamorphosing into young age or an adult. It would not be inapt to notice that young children or boys who have not yet reached the age of 18 years, many a time, without realizing or being ignorant of the consequences of their act which they perform in the frenzy of youth, emerge themselves as offenders under the provisions of POCSO Act and face serious consequences. Romantic love between 27 a boy and a girl of the age of adolescence sometimes arising out of infatuations result in the boy embroiling himself into the vortex of the provisions of the POCSO Act.
15. The laudable object for which the POCSO Act was brought into effect cannot be forgotten, but that would not mean that it is meant to punish young children who would fall in love and commit such acts which would become punishable under the Act, a caveat, this Court is not painting every incidence of sexual activity of any kind that would become an offence under the POCSO Act, with the same brush, but there are cases of the kind, like the one at hand, where the adolescents have indulged in such acts due to lack of knowledge of consequence of law. The documents appended to the petition also demonstrate that the petitioner is a bright student, the marks secured by him in the 10th grade are as follows:
"STATEMENT OF MARKS Name AARUSH JAIN Of FLORENCE PUBLIC HIGH SCHOOL, BENGALURU Unique ID 7381910 Son of Smt KAVITA JAIN Shri M DEVARAJ JAIN 28 SUBJECTS TOTAL MARKS PERCENTAGE MARKS MAX. MARKS 100 ENGLISH 82 EIGHT TWO ENGLISH LANGUAGE 077 LITERATURE IN ENGLISH 087 HINDI 084 84 EIGHT FOUR HISTORY, CIVICS & GEOGRAPHY 86 EIGHT SIX HISTORY & CIVICS 087 GEOGRAPHY 084 MATHEMATICS 079 79 SEVEN NINE SCIENCE 79 SEVEN NINE PHYSICS 079 CHEMISTRY 074 BIOLOGY 053 COMPUTER APPLICATIONS 092 92 NINE TWO Internal Assessment GRADE SUPW AND COMMUNITY SERVICE A Date of birth as certified by the (in words) Twenty Second December Two Thousand Four Head of the School at the time of (in figures) 22.12.2004 registration RESULT - PASS CERTIFICATE AWARDED Date of declaration of Result - 24.07.2021 Note: 1. The pass mark for each subject is 33%
2. No divisions are awarded.
Sd/-
Chief Executive & Secretary"
He is a student of "A" Grade. The act has been done in the frenzy of youth, owing to human curiosity, coupled with biological cravings. These are acts which are entirely different from acts which become offences under Section 5 which deals with aggravated penetrated sexual assault. These provisions are not 29 known to the students who are themselves minors and get infatuated. It is every time the parents of the wards come forward to register a complaint, many a time, to settle the dispute amongst themselves. It is in these peculiar facts, I deem it appropriate to take note of the settlement, accept the same and free the petitioner from the mesh of crime that he is enmeshed into, failing which, the future of a student would be put to insurmountable jeopardy, more so, with the settlement arrived at, no useful purpose would be served by sending the boy to face the rigmarole of criminal trial, on the allegation of provisions of the POCSO Act, as the boy who would be eventually acquitted, would become persecuted of the alleged crime for all his life. Therefore, I deem it appropriate to "bend the ark of justice" in favour of the petitioner and annihilate the proceedings against him.
16. For the aforesaid reasons, the following:
ORDER
(i) The application I.A.No.3/2022 filed under Section 320 of the Cr.P.C. stands allowed. Consequently, Criminal Petition stands disposed.30
(ii) The proceedings against the petitioner in Crime No.259/2021 pending before the XXXII Additional Chief Metropolitan Magistrate, Bengaluru stands terminated.
Sd/-
JUDGE bkp CT:MJ