Relief for Adolescents charged under POCSO: Quashing FIR if Married and Living Happily with Victim

Introduction:

The POCSO act was enacted to protect the children from sexual offences. It criminalizes, all the sexual acts committed with the minor, irrespective of the consent of the minor. There are two scenarios, the first being where one person commits sexual act with the minor forcefully, i.e without consent and the another is that where the act is committed with the consent, this is usually done in the case of love affairs among the adolescents. But since, the victim being the minor, consent becomes immaterial. The punishment being the same for both scenarios. It is very common nowadays that the young blood, who are ignorant of these statues and on the verge of majority often fall into love and enters into physical relationships without being aware that they are committing heinous offence. The legislature thought of protecting the children, however it failed to apprehend a situation where two adolescents indulges voluntarily into sexual acts. This is detrimental to minor children who, on the brink of adulthood, may engage in consensual acts and could be prosecuted under this law. It is well-known that these laws are often misused by the victim's guardians to harass or seek revenge against the other party. A large number of POCSO cases are filed against young men, who are either on the verge of adulthood or have just reached it, for engaging in consensual relations with nearly adult girls out of love.

The law is clear that the act is punishable irrespective of the consent. The minor age of the person dilutes the sanctity of consent, thus making the acts which are done without any criminal intent also punishable. The question before the court is that whether it is just to go by the strict rules of the statute and punish the person for consensual and healthy Romantic adolescent relationship. This article answers this question.

What’s the remedy available?

The offences in question are of a particularly serious and heinous nature, and as such, they do not allow for the possibility of compounding, meaning that the parties involved cannot reach a settlement or compromise that would result in the withdrawal or mitigation of charges. Offences which are 'non compoundable' cannot be compounded by a criminal court in purported exercise of its powers under Section 320 Cr.P.C. Any such attempt by the court would amount to alteration, addition and modification of Section 320 Cr.P.C, which is the exclusive domain of Legislature.

The only possible course of action available in this situation is to seek recourse through the inherent powers vested in the High Court, as these powers allow the Court to intervene and exercise discretion in exceptional circumstances, ensuring that justice is served in a manner that upholds the principles of fairness and equity. In B. S. Joshi vs. State of Haryana, the Hon'ble Supreme Court held that Section 320 Cr.P.C. does not limit or control the exercise of powers vested in the High Courts under Section 482 Cr.P.C. and the High Courts would have the power to quash criminal proceedings on an FIR under exercise of power under Section 482 Cr.P.C., even if the offence was non-compoundable under Section 320 Cr.P.C. The Hon'ble Supreme Court held that the power of the High Courts under Section 482 Cr.P.C. to quash criminal proceedings or an FIR were not circumscribed by Section 320 Cr.P.C. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

Therefore, in instances where the statute does not provide an explicit provision for compounding the offence, the courts retain the authority to exercise their inherent powers. This allows them to quash the First Information Report (FIR) filed in such cases, even in the absence of a specific legal framework permitting compounding. 

Power of Quashing of FIR: 

The power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed.

Examination of POCSO Cases Where FIRs Were Quashed

Let us carefully examine and analyze a few notable cases under the POCSO Act, where the courts, after considering the specific facts and circumstances of each case, determined that the FIR should be quashed. This will involve looking into the reasoning behind the court's decision to exercise its discretion in dismissing the legal proceedings, even in the context of serious allegations under the POCSO Act. By exploring these instances, we can better understand the judicial approach to situations where factors such as consent, reconciliation, or other unique conditions influenced the decision to nullify the FIR and prevent further prosecution.

A Coordinate bench of Delhi High Court in Sonu @ Sunil v State of NCT of Delhi & Ors. came across a situation where a 16 year old girl got married with a 20 year old male. The father of the girl filed the complaint in which the accused was charged under Section 363, Section 376 of the IPC, Section 6 of POCSO and Section 3 of the Child Marriage Restraint Act, 1929. The couple got married, later had two children and were happily residing together. A petition was filed for the quashment of the FIR. It observed as the Courts are faced with petitions where children, who are about to attain the age of majority, in ignorance of the statutory prohibitions and restrictions and consequences, in the name of love, commit acts which would otherwise amount to offence under the provisions of the Child Marriage Act, POCSO Act, and the IPC. Though, being minor, their consent is immaterial, however, factually it is there. This situation makes the Courts face with two consequences, either to go strictly by the mandate of the statute and convict the boy and impose punishment on him, which is rather severe in these statutes, or to exercise its power under Section 482 of the Cr.P.C. to protect the otherwise innocent children/adult by quashing the criminal proceedings. The Courts when faced with such a dilemma, has been adopting the route of exercising its power under Section 482 of the Cr.P.C., to quash such criminal proceedings where it finds that the girl was nearing the age of majority; had gone with the boy of her own free will (though it may be immaterial in law); is happily living with the boy, either in matrimony or otherwise, after attaining the age of majoriy; and in some circumstances where such relationship has also resulted in children being born. The Court, in such  circumstances, is persuaded to save the lives of such an accused, rather than to make him undergo trial and eventual punishment, which would not only ruin innocent lives of the parties to such a relationship, but may be, also of the children that are born therefrom. Thus, the Court quashed the FIR.

The High Court of Himachal has also resorted to quashing of FIR in similar circumstances. In Ranjeet Kumar v. State of Himachal Pradesh adverting to the facts of the case the accused has been charged for the offences punishable under Sections 366, 376, 212 and 120-B IPC and Section 4 of the POCSO Act, but then it cannot be ignored that the criminal prosecution was set into motion only because the victim happens to be a child but otherwise she was in love with the accused. It is also not in dispute that the accused was interested to solemnize marriage with the child victim and has, in fact, solemnized marriage and thereafter has also entered into a compromise. In such circumstances, the Court could still quash the FIR after satisfying itself that the child victim and her family members had settled the dispute and the victim got married and was leading a peaceful life and, therefore, allowing the prosecution to continue in such case would only result in disturbance in their happy family life and ends of justice in such circumstances would demand that the parties be allowed to compromise. However, before doing so, the Court must ensure that the marriage is not a camouflage to escape punishment and the consent given by the victim for compromise is voluntarily. The Court must also be satisfied after considering all the facts and circumstances of the case that quashing the proceedings would promote justice for the victim and continuance of the proceedings would cause injustice.

Therefore, the court considered in such circumstances, compounding of the offence, would enable both the parties to lead life of respect and dignity in the society. Once, there is no dispute between them, then obviously the law cannot be so harsh so as to stand as wall between the parties, because the law has to secure the future of the parties, and continuation of criminal proceedings in such circumstances, would only cause an irreparable harassment and hardship and may even tarnish and spoil the reputation of the victim. The Court proceedings cannot be permitted to de-generate into a weapon of harassment and persecution. The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything, except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice.  No embargo, be in the shape of Section 320(9) of the Cr.P.C. or any other such curtailment can whittle down the power of the High Court under Section 482 Cr.P.C. to do complete justice. The compromise, in a modern society, is the sine qua non of harmony and orderly behaviour. It is the soul of justice and if the power under Section 482 of the Cr.P.C. is used to enhance such a compromise which, in turn, enhances the social amity and reduces friction, then it truly is "finest hour of justice". 

In another case of Prem Kumar v The State & Ors.  The facts of the case were the petitioner was charged with under Sections 376/363 IPC and Section 6 of POCSO Act for eloping with a minor and got married and was blessed with a baby girl and a boy subsequently. 

Justice Rajnish Bhatnagar observed that “One cannot lose sight of the fact that both the petitioner and the respondent are happily residing together with their two minor children and are considering to restart their lives together with a new beginning. This Court cannot be a silent spectator to or turn its back on the distressed family. If the impugned FIR is not quashed, the petitioner will have to face incarceration for at least 10 years which will negatively impact their lives, including their two minor children. The mistake or blunder, which otherwise constitutes an offence, has been committed due to immature act and uncontrolled emotions of two persons, out of whom, one was a minor, on the verge of majority, at the time of incident as claimed by the state. The petitioner's prosecution and conviction will lead to pain and tears in the eyes of the family members of both the parties and future of two families will be at stake, whereas, if the impugned FIR is quashed, it would serve the ends of justice and would bring joy to both the families and two minor children as well.” It was reiterated that no doubt Section 376 IPC and Section 6 of the POCSO Act are not compoundable under Section 320 Cr.P.C., however, the authority of the High Court under Section 482 Cr.P.C. remains unrestricted by the provisions of Section 320Cr.P.C. It can use its inherent powers under Section 482 Cr.P.C. to quash FIRs and criminal proceedings if deemed necessary based on the specific facts and circumstances of the case, either to serve the interests of justice or to prevent the misuse of the court process. This power can even be exercised in cases where the offenses are non-compoundable, but the parties have reached a settlement among themselves. Here also, the FIR was quashed. 

In recent case of Moeed Ahamad And Ors v. State Of Nct Of Delhi And Ors, was the similar case of love affair, where a 16 year old girl eloped with a 19 year old boy. Later, the parties got married and two children were born out of the wedlock. The accused was charged with offences under Sections 363/365/376/368/212/506/34 of IPC and Section 4 of POCSO Act. The court pointed out that “In offences under Section 376 of IPC or under POCSO Act, the Court must be circumspect while quashing the FIR as these are offences against society, even when a compromise has been reached. But at the same time, the Court cannot overlook that both the parties are married and have children born from the wedlock.” and quashed the FIR.

A case with similar factual matrix of Mithun Kori v State (Nct Of Delhi) & Ors where the petitioner was arrested under Section 376 IPC and Section 6 of POCSO Act. The matter has been amicably settled between the parties and the Settlement Deed was made. The complainant, stated that she has no objection, if the FIR is quashed. Thus the High Court held that the parties have amicably resolved their differences out of their own free will and without any coercion. Hence, it would be in the interest of justice, to quash the FIR and the proceedings pursuant thereto. Moreover, there is no legal impediment in quashing the FIR in question.

CONCLUSION:

Adolescent children, in the name of love, may engage in acts that are considered heinous offenses, and the law leaves no room but to punish those involved, even if they had no criminal intent. However, if the court believes that the act was driven purely by emotions, was consensual, and both parties are living together happily, it cannot ignore this reality. In such cases, the High Courts in order to do justice has the option to invoke its inherent powers under Section 482  of the CrPC (now section 528 of BNSS) and quash the FIR and bring an end to these proceedings. From the cases discussed, it is clear that there are specific circumstances in which the court may exercise this power, however it is not every case that this relief can be granted on the pretext of doing justice. Courts have consistently held that FIRs in POCSO cases cannot be quashed solely on the basis of a compromise between the accused and the victim, even if the victim has attained majority and expresses a desire to withdraw the case. When considering the quashing of a FIR in cases involving the POCSO Act, courts must undertake a meticulous and multifaceted evaluation. The court must first be satisfied that the act was consensual and done willingly by both parties. Secondly, it must ensure that the parties reached an amicable settlement without any coercion. The child victim and her family members had settled the dispute and the victim got married. Court must ensure that the marriage is not a camouflage to escape punishment. And the other party has no objection in quashing the FIR.  Finally and most importantly, the court must assess the future prospects of the relationship. If it is evident that the parties are living together peacefully and happily and continuing the proceedings would only serve to harass both the accused and the victim, the court may, in the interest of justice, quash the proceedings.