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Meghalaya High Court · body

2022 DIGILAW 188 (MEG)

Shubam Das v. State of Meghalaya

2022-07-15

W.DIENGDOH

body2022
JUDGMENT 1. On 30.05.2019 the respondent No. 2 herein had lodged an FIR with the In-charge Nongmensong, Police Out Post, Shillong complaining that her daughter aged about 16 years had gone to her computer class on the previous day, but did not returned home till evening. 2. The complainant/respondent No. 2 later came to know that her daughter went out with the petitioner No. 1 herein. The said FIR was forwarded to Rynjah Police Station resulting in registration of Rynjah P.S. Case No. 66(6)19 under section 366 A IPC. 3. From the materials on record, it appears that investigation was launched and the statement of the complainant and other witnesses was recorded under section 161 and 164 CrPC respectively. The Investigating Officer (I/O) on completion of the investigation had filed the charge sheet against the petitioner No. 1 and the matter was taken cognizance of by the court of the learned Special Judge, (POSCO) Shillong and registered as Special POCSO Case No. 36 of 2020 under section 5(1)/6 of the POCSO Act and is pending adjudication till date. 4. The petitioner then approached this Court with this application under section 482 CrPC seeking to set aside and quash the said FIR dated 30.05.2019 and the subsequent criminal proceedings before the court of the Special Judge, (POCSO) Shillong. 5. Heard Ms. R. Kharshiing, learned counsel for the petitioner. Also heard Mr. A. M. Sangma, learned counsel for the respondent No. 2. Mr. S. Sengupta, learned Addl. P.P., appears for the State respondent No. 1. 6. The learned counsel for the petitioner has submitted that this is a case where there is a love affair between them for which when their affair was discovered by the sister of the petitioner No. 1, who scolded him, they then decided to elope and accordingly left Shillong for Assam on 29.05.2019. However, on 17.06.2019 when the petitioner No. 1 went for a job interview at Chevrolet company, on the way from the hotel they were caught by the police who brought them back to Shillong. 7. It is also further submitted the petitioners are in a fast relationship even to the extent of having physical relations and are practically living as husband and wife since the year 2020 when a male issue was born to them on 22.11.2020. 7. It is also further submitted the petitioners are in a fast relationship even to the extent of having physical relations and are practically living as husband and wife since the year 2020 when a male issue was born to them on 22.11.2020. On attaining the age of majority, the petitioners have also got their marriage registered before the Marriage Officer, East Khasi Hills District, Shillong on 08.06.2022. 8. This relationship between the petitioners herein now has the consent of the family members of both parties and under the circumstances, the case against the petitioner No. 1 pending before the court of the learned Special Judge (POCSO), Shillong has resulted in causing grave hardship and inconvenience to the petitioner which would have an impact on their family life including the life of their minor child, submits the learned counsel. 9. Though it is admitted that the proceeding and charges are under the POCSO Act, however, it is submitted that taking into consideration the welfare and future of the parties involved, this Court may take a lenient view in such cases as has been done by many high courts in similar cases. The case of Vijayalakshmi & Anr. v. State Rep. By. Inspector of Police, All Women Police Station, Erode: Crl. O.P No. 232 of 2021, para 11 & 18 and the case of Ranjit Rajbanshi v. State of West Bengal and Ors: C.R.A. No 458 of 2018, High Court of Calcutta, at para 47, 48 & 49 have been cited by the petitioners in this regard to make out a case for a favourable consideration on their behalf. 10. The learned counsel for the respondent No. 2 has submitted that the fact that the petitioners herein are now living together as husband and wife and having a minor child, the family members of both sides have no objection to this union and as such continuation of the criminal proceedings against the petitioner No. 1 would only cause undue hardship and this Court may be pleased to pass necessary orders in this regard. 11. Learned Addl. P.P., Mr. S. Sengupta, has also fairly submitted that considering the fact that the petitioners are now living together as husband and wife with a child out of the said union, this Court under the circumstances may deal with the matter sympathetically. 12. 11. Learned Addl. P.P., Mr. S. Sengupta, has also fairly submitted that considering the fact that the petitioners are now living together as husband and wife with a child out of the said union, this Court under the circumstances may deal with the matter sympathetically. 12. On hearing the submission of the learned counsels for the parties, it appears that there is a consensus that the petitioner No. 1 though accused of having committed an offence under section 5(l) of the POCSO Act, penetrative sexual assault being defined in section 3 of the POCSO Act would means penetration of the penis to any extent into the vagina, mouth, urethra or anus of a child et al, he is liable to be punished for the same under section 6 of the said Act which would involve an imprisonment of not less than 20 years, even extending to life imprisonment. 13. The key word here is 'assault' which implies a threat or attempt to inflict offensive physical contact or bodily harm on a person that would put the person on the receiving end in immediate danger or in apprehension of such harm or contact, however if the aspect of consensual or voluntary involvement is considered, the application of the meaning 'assault' in such a situation would perhaps be rendered not applicable. This is said in the context of sexual assault. 14. In the case of Ranjit Rajbanshi (supra) this sentiment has been echoed by the Hon'ble Calcutta High Court when at paragraph 47, 48 and 49 of the same, it was held thus: '47. In the present case, the victim girl was admittedly 16 1/2 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. 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 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. Again, in the case of Vijayalakshmi (supra) the Hon'ble Madras High Court at para 11 and 18 has observed as follows: '11. Again, in the case of Vijayalakshmi (supra) the Hon'ble Madras High Court at para 11 and 18 has observed 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 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. ... 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 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.' 16. Without going further, under the peculiar facts and circumstances of the case, this Court is of the considered opinion that the petitioners have been able to make out a case for quashing of the related FIR and the proceedings in Special POCSO Case No. 36 of 2020 under section 5(1)/6 POCSO Act. 17. Accordingly, this petition is allowed. Without going further, under the peculiar facts and circumstances of the case, this Court is of the considered opinion that the petitioners have been able to make out a case for quashing of the related FIR and the proceedings in Special POCSO Case No. 36 of 2020 under section 5(1)/6 POCSO Act. 17. Accordingly, this petition is allowed. The FIR and the proceedings in Special POCSO Case No. 36 of 2020 under section 5(1)/6 of the POCSO Act is hereby set aside and quashed. 18. Petition disposed of. No costs.