Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 326 (HP)

Saurav Kumar v. State of Himachal Pradesh

2025-03-10

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. 1. Petitioners have filed the present petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’) for quashing of FIR No.44 of 2020, dated 02.11.2020, (hereinafter referred to as the FIR, in question), registered with Women Police Station Baddi, District Solan, H.P., under Section 376 of the Indian Penal Code, (hereinafter referred to as the ‘IPC’) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the ‘POCSO Act’), as well as, proceedings resultant thereto, which are stated to be pending, before the Court of learned Principal Magistrate, Juvenile Justice Board Court, Solan, H.P., in Case No. 22/2 of 2021, titled as State Vs. Saurav. 2. The present petition has been filed by the petitioners to quash the FIR, in question. In the present case, petitioner No.1 is the accused, whereas, petitioner No.2 is the child victim. 3. The main ground, upon which, the quashing of FIR has been sought, is that during the pendency of the case, petitioners have solemnized the marriage on 21.02.2025. In this regard, they have relied upon the marriage certificate. 4. Not only this, petitioners have also pleaded that they have been blessed with two children. 5. Perusal of record shows that FIR, in question, has been lodged on the statement of respondent No.2, who, at the relevant time, was working as Legal-cum-Probation Officer, District Child Protection Unit, District Solan, H.P. 6. In this background, when, learned counsel, appearing for the petitioners, has been confronted with the maintainability of the present petition, then, learned counsel for the petitioners could not satisfy the judicial conscience of this Court. 7. The FIR, in question, has been registered, under the special statute i.e. POCSO Act. The Legislature, in its wisdom, has enacted the special statute, i.e. POCSO Act, by keeping in view the rising number of cases, being committed against the children. Once, it has been held that the offences are against the State, then, it is the duty of the State to prosecute the offender, before the competent Court of law. 8. As observed earlier, the Legislature, in its wisdom, has enacted the POCSO Act, with an object to reduce the child abuse and protection of the children from sexual offences. The Hon’ble Supreme Court in Criminal Appeal No. 3403 of 2023, titled as Ramji Lal Bairwa & Anr. 8. As observed earlier, the Legislature, in its wisdom, has enacted the POCSO Act, with an object to reduce the child abuse and protection of the children from sexual offences. The Hon’ble Supreme Court in Criminal Appeal No. 3403 of 2023, titled as Ramji Lal Bairwa & Anr. Vs. State of Rajasthan & Ors., 2024 INSC 846 , has elaborately discussed the provisions of POCSO Act and has held that the quashing of the proceedings, under Section 528 of the BNSS, in POCSO cases, on the basis of the settlement, is against the legislative intent, behind the enactment. Relevant paragraphs 10 to 12 and 31 of the said judgment are reproduced, as under:- “10. Before dealing with the contentions on behalf of the respondents and also the submissions of the learned amicus curiae and the counsel for the intervenor, we think it only appropriate to refer to certain relevant aspects of the POCSO Act. As introduction to the POCSO Act, what actually actuated the Parliament to enact ‘POCSO Act’ has been stated thus:- “Sexual offences against children are not adequately addressed by the existing laws. A large number of such offences are neither specifically provided with nor are they adequately penalised. Such offences against children need to be defined explicitly and countered through adequate penalties as an effective deterrence. This Act provides for protection of children from offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well-being of children.” 11. Contextually, it is worthy to refer to the statement of objects and reasons for the enactment of the POCSO Act. It reads as follows: “STATEMENT OF OBJECTS AND REASONS Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Further, article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. 2. Further, article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. 2. The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials. 3. The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. This is corroborated by the 'Study on Child Abuse: India 2007' conducted by the Ministry of Women and Child Development. Moreover, sexual offences against children are not adequately addressed by the existing laws. A large number of such offences are neither specifically provided for nor are they adequately penalised. The interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence. 4. It is, therefore, proposed to enact a self contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process, incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences. 5. The Bill would contribute to enforcement of the right of all children to safety, security and protection from sexual abuse and exploitation. 6. The notes on clauses explain in detail the various provisions contained in the Bill. 7. The Bill seeks to achieve the above objectives.” 12. The objects and reasons for the enactment of the POCSO Act, as extracted above, would undoubtedly show that quashment of proceeding initiated under POCSO Act abruptly by invoking the power under Section 482, Cr. 6. The notes on clauses explain in detail the various provisions contained in the Bill. 7. The Bill seeks to achieve the above objectives.” 12. The objects and reasons for the enactment of the POCSO Act, as extracted above, would undoubtedly show that quashment of proceeding initiated under POCSO Act abruptly by invoking the power under Section 482, Cr. PC without permitting it to mature into a trial, except on extremely compelling reasons ex facie malafidely initiated or initiated solely to settle the score etc., would go against the very intention of the legislature behind the enactment. As noted earlier, it is the inadequacy of the existing laws to address certain issues relating sexual offences against the children that made the legislature to come up with the aforesaid legislation with a view to protect and respect the privacy and confidentiality of children and to ensure their physical, emotional, intellectual and social development. The POCSO Act also addressed the lack of provisions defining various offences against the children and also adequate penal provisions therefor. A careful scanning of the various provisions under the POCSO Act would reveal that with a view to achieve the aforesaid objects and purposes various offences against the children are specifically defined and provisions for adequate penalisation are also inserted in the Act. Obviously, rubbing the breast of a child would constitute an offence of ‘sexual assault’ under Section 7 of POCSO Act, punishable with imprisonment of either description for a term which shall not be less than three years and may extend to five years and also fine. They would reveal that the commission of such offences against the children should be viewed as heinous and serious. Needless to say, that commission of such offences cannot be taken lightly as offences of private nature and in fact, such offences are bound to be taken as offences against the society. In the decision in Attorney General for India v. Satish and Anr. at paragraph 38, this Court held thus:- “The act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialised or held insignificant or peripheral so as to exclude such act from the purview of “sexual assault” under Section 7. at paragraph 38, this Court held thus:- “The act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialised or held insignificant or peripheral so as to exclude such act from the purview of “sexual assault” under Section 7. As held by this Court in Balram Kumawat v. Union of India, the law would have to be interpreted having regard to the subjectmatter of the offence and to the object of the law it seeks to achieve. The purpose of the law cannot be to allow the offender to sneak out of the meshes of law.” xxx xxx xxx xxx xxx 31. In view of the very object and purpose of enacting the POCSO Act, we find no reason to disagree with the conclusions in paragraph 12 extracted above in the given case. It is more so, when the extracted portion from the complaint that was annexed to the FIR and extracted hereinbefore would reveal that the accused was making pressure on him not to lodge any report. Despite giving such statement in the complaint, within a couple of weeks, the accused managed to compromise the case with the 4th respondent and his wife.” 9. Being guided by the above decision of the Hon’ble Supreme Court, this Court is of the view that the present petition cannot be accepted, as, the quashing is also against the legislative intent, since, the offence is against the society and if such type of cases are quashed, on the basis of the grounds, as taken in the petition, it would encourage the other accused, who had committed such offence, to adopt the extra constitutional means to settle the matter i.e. influencing the witness by fiduciary relationship, using the money power or threatening the victim/complainant and to settle the matter. 10. If, the said prayer is allowed, then, it would amount to letting the accused go without legal punishment, in case, the prosecution is able to prove the case, beyond reasonable doubt, against him. 11. In view of the discussions, made hereinabove, the present petition is liable to be dismissed and is accordingly dismissed. 12. Pending miscellaneous applications, if any, shall also stand disposed of accordingly.