Criminal Proceedings Involving Very Serious Offences Under POCSO Act Can't Be Quashed On Ground Of Settlement: Kerala HC

The Kerala High Court has reiterated that criminal proceedings under Protection of Children from Sexual Offences Act cannot be quashed citing settlement between the parties.

The Court was considering a Criminal Miscellaneous Petition filed under Section 482 of the Code of Criminal Procedure seeking quashing of FIR, final report thereof and further proceedings in case registered at Fast Track Special Court.

The single- bench of Justice A. Badharudeen observed, "....the legal position is apparent and comprehensive that criminal proceedings involving very serious offences under the POCSO Act could not be quashed on the ground that the accused and the complainant had settled the matter. That apart, in cases of this nature, the fact that in view of compromise entered into between the parties, the chance of a conviction is remote and bleak also cannot be a ground to abruptly terminate the investigation, by quashing FIR and all further proceedings pursuant thereto, by invoking the power under Section 482, Cr.P.C."

The Petitioner was represented by Advocate C.P. Udayabhanu while the Respondent was represented by Senior Public Prosecutor Renjit George.

The Prosecution alleged commission of offences punishable under Sections 450, 376(2)(n), 354, 354A(1)(i), 354D(1)(i), 354D(1)(ii) of the Indian Penal Code, Section 4 r/w 3, 6(1) r/w 5(l), 8 r/w 7, 10 r/w 9(l), 12 r/w 11(iv), 15 of Protection of Children from Sexual Offences Act and Section 66E of Information Technology Act. It was the case of the prosecution that the victim, aged about 17 years, while studying for B.Sc. Chemistry was made acquaintance by the accused through one of her friends during her school days. Thereafter, he used to accompany her and talk to her while she was going to school and made a promise to marry. He later contacted her via WhatsApp and eventually made calls directly and thereafter started to reach the house of the victim in the absence of her parents. On one such occassion, he compelled the victim to have sexual intercourse with him, despite her protest and continued the same thereafter on subsequent dates.

Counsel for the Petitioner zealously argued that the allegations are false and none of the offence made out, prima facie against the petitioner and that the victim filed an affidavit stating that the matter was settled. He averred that since the relationship and consensual sex are during the period of adolescence of the parties in continuation of a romantic relationship, this is a fit case to quash the proceedings.

On the other hand, Public Prosecutor strongly opposed quashment of a case under the POCSO Act on the submission that POCSO Act cases could not be settled on the strength of an affidavit filed by the victim subsequently. He averred that it is discernible that the accused started relationship with the victim offering to marry her and continued the same and on this false promise had coitus with her repeatedly. He contended that the offences are prima facie made out and serious offences under the POCSO Act could not be settled on the strength of affidavit filed by the victim at a subsequent stage even after attaining majority. 

The Court at the outset referred to Supreme Court's decision in Ramji Lal Bairwa & Anr. v. State of Rajasthan & Ors. where a minor child victim was patted on her cheeks by the accused and he put his hand inside her bodice and rubbed her breast, where the High Court of Rajasthan quashed the proceedings despite the opposition of the Public Prosecutor where the dispute was settled in between the victim and the accused. 

"In view of the Supreme Court decision as discussed, the ratio in Vijayalakshmi's case (supra) is per- incurium. Thus the legal position is apparent and comprehensive that criminal proceedings involving very serious offences under the POCSO Act could not be quashed on the ground that the accused and the complainant had settled the matter............An important aspect to be noted is that in cases where the victim’s statement under Section 164 of Cr.P.C was recorded, despite hostility of the victim on the premise of settlement, the prosecution can make use of the 164 statement to corroborate the evidence of the victim to get support for the prosecution allegations," the Court observed.

The Petition was accordingly dismissed.

Cause Title: Akhil Mohnan vs. State of Kerala

Appearances:

Petitioner- Advocate C.P. Udayabhanu, Advocate Navaneeth N. Nath

Respondent- Senior Public Prosecutor Renjit George

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