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Meghalaya High Court · body

2022 DIGILAW 233 (MEG)

Momita Boro v. State of Meghalaya

2022-08-31

W.DIENGDOH

body2022
JUDGMENT 1. This is a case where the accused and the alleged victim in a case under the Protection of Children from Sexual Offence (POCSO) Act, 2012 have approached this Court with a prayer to set aside and quash the FIR dated 05.07.2018 and the consequent Special POCSO Case No. 29 of 2022. 2. The proceeding was set in motion on the basis of an FIR dated 05.07.2018 filed by the respondent No. 2 herein who has reported that his minor daughter aged about 16 years went missing from home. However after searching for her, he along with others were able to recover her from one village where they found her in the company of the petitioner No. 2 herein. Accordingly, the police have registered a case being Shella P.S Case No. 18(07) of 2018 under Section 3(a)/4 POCSO Act read with Section 363 IPC. 3. In course of investigation, the statement of the victim under Section 161 and Section 164 Cr.P.C was recorded and the accused/petitioner No. 2 was also interrogated and was arrested in connection with the said case. 4. The Investigating Officer (I/O) on completion of the investigation has filed the final report/chargesheet under Section 173 Cr.P.C with the opinion that the allegation against the accused/petitioner No. 2 that he has sexually assaulted the victim/petitioner No. 1 is substantiated by the statement of the victim girl made under Section 161 and 164 Cr.P.C and accordingly a prima facie case under Section 3(a) POCSO Act is found well established and he was sent up to stand trial before the competent court under Section 4 of the POCSO Act. 5. During the pendency of the case before the court of the learned Judge (POCSO) Shillong, the petitioners as mentioned above have approached this Court with this application under Section 482 Cr.P.C seeking to invoke the inherent power of the High Court to quash the said criminal proceedings. 6. Mr. S. Pandey learned counsel for the petitioners has submitted that the petitioners are in a love relationship for about three years and has mutually decided to elope since the petitioner No. 1 was still studying in class VIII at the relevant time. The petitioner No. 1 accordingly met the petitioner No. 2 on 04.07.2018 at 5 am and they then proceed towards Lailad village on foot. The petitioner No. 1 accordingly met the petitioner No. 2 on 04.07.2018 at 5 am and they then proceed towards Lailad village on foot. On reaching Lailad village, they took shelter in the house of one lady who knew the family of the petitioner No. 1 and who informed the father of the petitioner No. 1 about her whereabouts after which the family members of the petitioner No. 1 came and escorted her back to her home on 05.07.2018. 7. The petitioner No. 2 was arrested on the basis of the FIR lodged by the father of the petitioner No. 1 and he is now facing trial in connection with the said case. 8. The learned counsel for the petitioners has further submitted that the fact of the matter is that no ingredients of sexual assault could be made out as the physical relationship between the petitioner No. 1 and No. 2 is one of consent and after the petitioner No. 2 was released on bail, he stayed together with petitioner No. 1 as husband and wife. As soon as the petitioner No. 1 attained the age of majority, the couple got married on 07.06.2020. To this extent the petitioners have filed an additional affidavit dated 11.08.2022 bring on record the factum of their marriage through production of a copy of the certificate issued by the Chairman, Dharambasti who had certified that the petitioner No. 1 and petitioner No. 2 were married on 07.06.2020 at Dharambasti and out of this marriage, a son was born to them on 10.10.2021. 9. The respondent No. 2 who is the complainant and also the father of the petitioner No. 1 has also filed an additional affidavit before this Court dated 25.08.2022 stating that he is the father of the petitioner No. 1 and the father-in-law of the petitioner No. 2 and that he is aware of the criminal proceedings against the petitioner No. 2. However, he also confirmed that the two were in a love relationship for about three years and had engaged on consensual physical relationship. After the petitioner No. 1 attained the age of majority, the petitioners were married on 07.06.2020 as per Hindu rituals and they are now living together as husband and wife with a son born to them on 10.10.2021. After the petitioner No. 1 attained the age of majority, the petitioners were married on 07.06.2020 as per Hindu rituals and they are now living together as husband and wife with a son born to them on 10.10.2021. The respondent No. 2 has further stated that he does not wish to prosecute the case against the petitioner No. 2 any further. 10. The learned counsel has therefore made a prayer that considering the present condition of the parties involved, it would be a futile and unnecessary exercise if the case against the petitioner No. 2 is allowed to continue since from the attitude of the principal witnesses the case is bound to fail and the prospect of conviction is dim, the proceedings in Special POCSO Case No. 29 of 2022 be set aside and quashed. 11. Mr. S. Sengupta, learned Addl. PP has submitted that this Court in a number of similar cases has allowed the prayer for quashing of the related proceedings before the Court of Special Judge (POCSO) and as such on perusal of the case diary produced before this Court, necessary orders may be passed. 12. On consideration of the submission made by the parties and on perusal of the contents of the case diary, the fact as stated above is confirmed and that the petitioner No. 2 is being prosecuted as an accused in the Special POCSO Case No. 29 of 2022. However, it cannot be denied that the relationship between the petitioners herein was based on mutual understanding and affinity and the act of sexual intercourse could be seen as an expression of love and affection between two young people. Oblivious to the provision of law which do not allow any kind of physical contact with a sexual tone, particularly against a child, who by definition under the POCSO Act is a person below the age of 18, the petitioners have carried on their relationship to the next level culminating in physical relationship. At the time of the incident, the petitioner No. 1 is said to be 16 years. Though legally she is still a minor, but mentally she has the faculty to decide for herself, for which in this instant case she has clearly stated that her physical relationship with petitioner No. 2 is based on love and mutual consent. 13. At the time of the incident, the petitioner No. 1 is said to be 16 years. Though legally she is still a minor, but mentally she has the faculty to decide for herself, for which in this instant case she has clearly stated that her physical relationship with petitioner No. 2 is based on love and mutual consent. 13. In this regard, this Court would respectfully agree with the observations made by the Hon'ble Calcutta High Court in the case of Ranjit Rajbanshi v. State of West Bengal & Ors. C.R. A No. 458 of 2018 wherein the Hon'ble Calcutta High Court at para 47, 48 and 49 has observed as under:- '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. 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. 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 7 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.' 14. Applying the above observations to the present case, this Court is persuaded to observe that there exist a parallel in the two separate but similar circumstances. Being convinced that the case of the petitioners has merits, the same is therefore favourably dispensed with. 15. Accordingly, this petition is allowed, the FIR dated 05.07.2018 and the related case being Special POCSO case No. 29 of 2022 is hereby set aside and quashed. 16. Petition disposed of. No costs.