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2022 DIGILAW 1970 (MAD)

T. Shanthini v. M. Manikandan

2022-07-08

N.SATHISH KUMAR

body2022
JUDGMENT : (Prayer in Crl.O.P.No.17813 of 2021: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to direct the IX Metropolitan Magistrate, Saidapet, Chennai to take the petition on file filed by the petitioner herein in unnumbered D.V.C.No. of 2021 and number the same and to adjudicate the same in accordance with law. Prayer in Crl.O.P.No.13056 of 2021: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records in P.R.C.No.64 of 2021 on the file of the IX Metropolitan Magistrate, Saidapet, Chennai and quash the entire proceedings in sofar as the petitioner is concerned. [Prayer in Crl.O.P.No.13056 of 2021 was amended as per order in Crl.M.P.No.2223 of 2022 in Crl.O.P.No.13056 of 2021, dated 08.04.2022.]) 1. CRL.O.P.No.17813 of 2021 has been filed to direct the learned IX Metropolitan Magistrate, Saidapet, Chennai to take the petition on file filed by the petitioner in unnumbered D.V.C.No. of 2021 and number the same and to adjudicate the same, in accordance with law. 2. CRL.O.P.No.13056 of 2021 has been filed to quash the proceedings in P.R.C.No.64 of 2021, on the file of the IX Metropolitan Magistrate Court, Saidapet, Chennai. 3. For the sake of convenience and clarity, the petitioner in Crl.O.P.No.17813 of 2021 and the 2nd respondent in Crl.O.P.No.13056 of 2021 is referred to as 'Defacto complainant' and the respondent in Crl.O.P.No.17813 of 2021 and the petitioner in Crl.O.P.No.13056 of 2021 is referred to as 'Accused'. 4. The case is still in the stage of trial. By passage of time, the parties have decided to bury their hatchet and compromise the dispute amicably among themselves. 5. The defacto complainant is present before this Court and she was identified by her learned counsel Mr.M.Maharaja and Mrs.E.Vijaya Kumari, Inspector of Police, W19 Adyar All Women Police Station, Chennai, who is also present at the time of hearing. In order to identify the defacto complainant, the learned counsel for the defacto complainant also produced the copy of the Aadhaar Card and it is made part of the record. In the affidavits, she has stated that she gave the complaint against the petitioner due to wrong advice and now, she does not want to proceed further and withdraw the proceedings in P.R.C.No.64 of 2021 and the Domestic Violence complaint (unnumbered), on the file of the IX Metropolitan Magistrate Court, Saidapet, Chennai. In the affidavits, she has stated that she gave the complaint against the petitioner due to wrong advice and now, she does not want to proceed further and withdraw the proceedings in P.R.C.No.64 of 2021 and the Domestic Violence complaint (unnumbered), on the file of the IX Metropolitan Magistrate Court, Saidapet, Chennai. The affidavits of the defacto complainant are taken on record. 6. The learned Additional Public Prosecutor appearing on behalf of the 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. 7. 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 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. 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 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”. 8. 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]. 9. In light of the above judgments, though the case has been registered for offence under Section 376 of IPC, now the defacto complainant appeared before this Court and stated that she preferred the complaint against the petitioner on wrong advice and motive and also filed the affidavit to that effect. 10. 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 accused. 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. 11. This Court also enquired the defacto complainant and was satisfied that the defacto complainant has come to an amicable settlement. The defacto complainant herself admitted that she preferred the complaint against the accused on wrong advice and motive. Hence, the attitude of the defacto complainant is highly condemnable and there is no purpose in continuing the entire criminal proceedings against the accused. 12. The defacto complainant herself admitted that she preferred the complaint against the accused on wrong advice and motive. Hence, the attitude of the defacto complainant is highly condemnable and there is no purpose in continuing the entire criminal proceedings against the accused. 12. Considering the submissions of the learned counsel and also considering the nature of affidavits, this Court is inclined to quash the proceedings in P.R.C.No.64 of 2021, on the file of the IX Metropolitan Magistrate Court, Saidapet, Chennai, on the ground of abuse of process of law. 13. Accordingly, Crl.O.P.No.13056 of 2021 is allowed and the proceedings in P.R.C.No.64 of 2021, on the file of the IX Metropolitan Magistrate, Saidapet, Chennai, is quashed against all the accused in the final report. 14. Since the defacto complainant is inclined to withdraw the Domestic Violence complaint (unnumbered), on the file of the IX Metropolitan Magistrate, Saidapet, Chennai and also filed affidavit to that effect, Crl.O.P.No.17813 of 2021 stands dismissed. The connected Criminal Miscellaneous Petitions are closed. The affidavits of the defacto complainant shall form part and parcel of this order.