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Meghalaya High Court · body

2022 DIGILAW 305 (MEG)

Donald Shadap v. State of Meghalaya

2022-11-15

W.DIENGDOH

body2022
JUDGMENT 1. A case under Section 5(j)(ii)(l)/6 of the POCSO Act, 2012 read with Section 376 IPC before the Court of the learned Special Judge (POCSO), Shillong in Special POCSO Case No. 98 of 2021 against the petitioner No. 1 herein is pending trial with three prosecution witnesses already being examined and discharged. 2. At this stage of the trial, the petitioner No. 1 and the alleged victim girl as petitioner No. 2 has approached this Court with this petition under Section 482 Cr.PC with a prayer to set aside the proceedings before the said Special Court (POCSO), Shillong. 3. Heard Ms. N. M. Kharshemlang, learned counsel for the petitioners who has submitted that the factum of the matter is that the on 26.08.2021 the mother of the petitioner No. 2 herein took her to NEIGRIHMS, Shillong for medical check-up. However in course of the same, it was found out that the petitioner No. 2 is already 23 weeks pregnant. On being asked, she replied that she is in a love relationship with the petitioner No. 1 herein and in course of their love affair, they had sexual intercourse by mutual consent. 4. However, as mandated by the relevant provisions of law, particularly the POCSO Act, the respondent No. 2, the mother of the petitioner No. 2 lodged an FIR with the Officer-In-Charge, Mawlai Police Station informing the police about the incident, particularly since the age of her daughter (petitioner No. 2) was only about 17 years at that time. A case being Mawlai P.S. Case No. 50 (08) of 2021 under section 5(j)(ii)/6 of the POCSO Act was registered, with the petitioner No. 1 being arrayed as the main accused who was then subsequently arrested in connection thereof. 5. The Investigating Officer (I/O) after completion of the investigation then filed the charge sheet under Section 173 Cr.P.C finding that a prima facie case is well established against the accused/petitioner No. 1 under Section 5(j)(ii)(l)/6 of the POCSO Act read with Section 506 IPC and he was sent to stand trial to answer the said charges. In the meantime, the accused/petitioner No. 1 was released on bail vide order dated 30.11.2021. 6. In the meantime, the accused/petitioner No. 1 was released on bail vide order dated 30.11.2021. 6. The learned Special Judge (POCSO) taking cognizance of the case has framed charges against the accused/petitioner No. 1 under Section 5(j)(ii)(l)/6 of the POCSO Act read with Section 376 IPC to which he pleaded not guilty and as such, the trial proceeded with summons to witnesses being issued. Till date, three out of four prosecution witnesses have been examined. 7. The learned counsel for the petitioner has submitted that this is a case where the alleged victim girl/petitioner No. 2 has not denied the relationship with the accused/petitioner No. 1 and has stated in her statement under Section 164 Cr.P.C before the learned Judicial Magistrate First Class (JMFC) that she was in a love relationship with the petitioner No. 1 and has also admitted that they have had sexual intercourse which eventually led to the pregnancy. The same was done out of her own free will without any threat or coercion from the petitioner No. 1. Even in her deposition as PW-1 before the Trial Court, the petitioner No. 2 has reiterated whatever she has stated before the learned Magistrate. 8. It is also submitted that on 21.12.2021, a female child was born to the couple and in due course when the petitioner No. 2 had attained the age of majority, they were legally married on 08.09.2022 under the Special Marriage Act, for which a certificate to this effect was issued to them. Annexure -11 to this petition is a copy of the said marriage certificate. 9. Again, it is submitted that the respondent No. 2 as complainant has also appeared as a witness before the Trial Court and on being examined as PW-2, she has deposed that she was aware of the relationship between her minor daughter and the accused/petitioner No. 1 and has warned her daughter of the relationship as she was a minor of about 16 years at that time. However, when she took her daughter to NEIGRIHMS she was informed by the doctor that her daughter was already pregnant. This witness in her cross-examination has however stated that now her daughter has attained the age of majority and she is not averse to the relationship between the two of them and wanted them to get married so that they can take care of their baby girl. 10. This witness in her cross-examination has however stated that now her daughter has attained the age of majority and she is not averse to the relationship between the two of them and wanted them to get married so that they can take care of their baby girl. 10. In the light of the facts and circumstances surrounding the relationship between the petitioner No. 1 and 2 respectively, the learned counsel has submitted that now that they are married with a child and are staying together, the petitioner No. 2 or the respondent No. 2 for that matter does not wish to continue with the proceedings of the case against the petitioner No. 1 and quashing the said proceedings would be for the interest of the young family and for the benefit of their child. 11. In this regard, the learned counsel has referred to the case of 'Shri. Skhemborlang Suting & Anr. v. State of Meghalaya & Anr.' and also the case of 'Lurshai Lyngdoh Mawlong & Anr. v. State of Meghalaya & Anr.', where this Court exercising its inherent power under Section 482 Cr.P.C has quashed the related criminal proceedings pending before the learned Trial Court considering the love relationship and the fact that the couple involved were staying together as husband and wife at the relevant period. 12. It is prayed that this petition be allowed and the proceedings in Special POCSO Case No. 98 of 2021 be quashed. 13. Learned GA, Mr. K. P. Bhattarcharjee, in his response to the submission of the learned counsel for the petitioner, on behalf of the State respondents has submitted that the only factor that this Court may take into consideration at this juncture is the fact that the case against the petitioner No. 2 is at the evidence stage and three out of the four witnesses have already been examined and as such, the learned Trial Court may be allowed to conclude the proceedings and to consider the argument of the parties at the time of final argument of the same. 14. Ms. P. Chetri, learned counsel for the respondent No. 2 has submitted that as the complainant she has no objection to the submission of the learned counsel for the petitioners and has left it to the discretion of this Court to pass necessary orders. 15. 14. Ms. P. Chetri, learned counsel for the respondent No. 2 has submitted that as the complainant she has no objection to the submission of the learned counsel for the petitioners and has left it to the discretion of this Court to pass necessary orders. 15. This is one of those cases where a young couple has entered into a physical relationship without considering the consequences thereof, either legally, socially or even physically. Teenage pregnancy and marriage below the permissible age is very prevalent in this country and even in this state. According to the National Family Health Survey-5 for 2019-20 which is a large scale, multi-round survey conducted in a representative sample of households throughout India as far as Meghalaya is concerned, the reports state that about 7.2% of women between the age 15-19 years are already mothers or pregnant at the time of the survey. This instant case is therefore not an isolated case. 16. However on the factual aspect of this case, what is noticed is that for an incident which occurred on 23.08.2021 wherein the petitioner No. 2 on being examined at NEIGHRIMS, Shillong was found to be pregnant and the events thereafter unfolded to reveal the complicity of the petitioner No. 1 as the one who has impregnated her and following which a case under the POCSO Act was registered, proceedings of which has reached till the stage of trial and recording of evidence of the prosecution witnesses, the parties have chosen to approach this Court only at this stage. 17. From the materials on record, particularly the statement of the petitioner No. 2 made under Section 164, it is seen that the petitioner No. 2 has stated that the Petitioner No. 1 had threatened her as regard the welfare of the unborn baby that he will not take care of her or the baby if he goes to jail. It is further stated that the family members of the petitioner No. 1 has forced the mother of the petitioner No. 2 to get them married as soon as she reaches 18 years. The petitioner No. 2 has also stated that she does not wish to marry the petitioner No. 1. 18. It is further stated that the family members of the petitioner No. 1 has forced the mother of the petitioner No. 2 to get them married as soon as she reaches 18 years. The petitioner No. 2 has also stated that she does not wish to marry the petitioner No. 1. 18. In her deposition before the learned Trial Court as PW-1 the petitioner No. 2 has again reiterated that the petitioner No. 1 has told her that if he goes to jail he will not take care of her and the baby to which she replied that she does not want to marry him, it was only on the initiative of the family member who came to her house that she agreed to marry the petitioner No. 1 as soon as she reaches the age of 18 years. In the cross examination, the petitioner No. 2 has confirmed that she is planning to stay with the accused/petitioner No. 1 as soon as she attain the age of 18 years. 19. Notwithstanding the fact that the petitioner No. 1 and the petitioner No. 2 are now married, the fact that the case in question is already at the fag end of its conclusion and that this Court cannot appreciate the evidence recorded since this is not an appeal, therefore it would be a circumvention of the due process of law if the proceedings are scuttled at this point of time. In this regard the submission of the learned GA that the recording of evidence may be allowed to be completed is found acceptable in the peculiar facts and circumstances of this case. 20. Section 482 Cr.P.C is an enabling provision for the High Court to exercise its inherent jurisdiction however, it is generally confined to employ the power for prevention of abuse of the process of the court or to give effect to order under the Code of Criminal Procedure and finally to secure the ends of justice. 21. It is reiterated that under the peculiar facts and circumstances of this case, this Court is not inclined to exercise its inherent powers under Section 482 Cr.P.C but would rather allow the trial to be completed in its usual course. 22. Accordingly, this petition is hereby dismissed. 23. Before parting, this Court would request the Trial Court to expedite the proceedings keeping in mind the spirit of the POCSO Act. 24. 22. Accordingly, this petition is hereby dismissed. 23. Before parting, this Court would request the Trial Court to expedite the proceedings keeping in mind the spirit of the POCSO Act. 24. Petition disposed of. No costs.