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2022 DIGILAW 2853 (MAD)

Suraj v. Inspector of Police, Coimbatore

2022-08-22

N.SATHISH KUMAR

body2022
JUDGMENT (Prayer : Criminal Original Petition filed under Section 482 of Criminal Procedure Code, praying to call for the records in Special C.C.No.83 of 2021 pending on the file of the Special Court for exclusive trial of cases under POCSO Act, Coimbatore and quash the same.) This Criminal Original Petition has been filed to quash the proceedings in Spl.S.C.No. 83 of 2021 on the file of the learned Special Court for exclusive trial of cases under POCSO Act, Coimbatore for the offences under sections 366, 376(3) of IPC, Section 5[I], 5[j], [ii],[q] and 6 of POCSO Act 2012 and Section 9 of Prohibition of Child Marriages Act, 2006 2. The allegation in the final report indicates that the petitioner and the 3rd respondent/victim girl herein had love affair and got married on 11.06.2019. At the time of their marriage, the 3rd respondent had not attained her majority. Further, on 10.06.2020, the 3rd respondent was admitted in CMC hospital and she begot a child. Hence, the 2nd respondent/mother of the victim girl had lodged a complaint against the petitioner and a case has been registered in Crime No.1237 of 2020 and charge sheet has been filed and the same was taken on file in Special.S.C.No.83 of 2021 for the offences as stated above. 3. An Affidavit has been filed before this Court, which has been signed by the petitioner, 2nd and 3rd respondent and their respective counsel. Now, the petitioner, the 2nd and 3rd respondent and her 2 year old child appeared before this Court and they were identified by the respective counsel and Mr.M.Natarajan/Special Sub-Inspector of Police. Both of them submitted that they are married on 11.06.2019 and living happily together now. This Court also enquired both the parties and was satisfied that the parties have come to an amicable settlement between themselves. 4. 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 here under for proper appreciation: 21. The relevant portions of the judgment are extracted here under 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. 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. 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”. 5. 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]. 6. 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 petitioner. 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 over riding 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. 7. In the present case, the offences in question are purely individual / personal in nature. It involves the petitioner and 3rd respondent. 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. 7. In the present case, the offences in question are purely individual / personal in nature. It involves the petitioner and 3rd respondent. It involves the future of two young persons who are still in their young age. Quashing the proceedings, will not affect any overriding public interest in this case and it will in fact pave way for the petitioner and the victim girl 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 petitioner and the 3rd respondent. 8. In view of the above, this Court is inclined to quash the criminal proceedings in Special S.C.No.83 of 2021 on the file of the learned Special Court for exclusive trial of cases under POCSO Act, Coimbatore in exercise of its jurisdiction under Section 482 of the Criminal. 9. Accordingly, this Criminal Original Petition is allowed and the criminal proceedings in Special S.C.No.83 of 2021 on the file of the learned Special Court for exclusive trial of cases under POCSO Act, is hereby quashed and the terms of affidavits filed for compromise, shall form part and parcel of this order.