Madras High Court: N. Anand Venkatesh, J., while addressing a matter revolving around the POCSO Act expressed that:
“What came to be a law to protect and render justice to victims and survivors of child abuse, can, become a tool in the hands of certain sections of the society to abuse the process of law.”
The scheme of the POCSO Act clearly shows that it did not intend to bring within its scope or ambit, cases of nature where adolescents or teenagers involved in romantic relationships are concerned.
The present petition was filed jointly by the Defacto Complainant and Victim Girl with regard to quashing of the proceedings pending against the 2nd Respondent who was facing trial before the lower Court for offences under Section 366 of Penal Code, 1860, Section 6 of the Prevention of Child from Sexual Offences Act, 2012 and Section 9 of the Prohibition of the Child Marriage Act, 2006.
It was stated that 2nd petitioner, victim girl were in love with each other. Ultimately, they decided to get married and went away from their respective home.
Inspector of Police, Doulagh Nisha at the time of hearing informed the Court that the petitioners approached her and informed that they do not want to continue further with the criminal proceedings against 2nd respondent. Further, it was informed to her that 1st petitioner wants her daughter to get married and that the same was getting delayed due to the criminal proceedings causing mental agony to the petitioners.
Analysis and Decision POCSO SCHEME
While addressing the present matter, Court was instantaneously reminded of an earlier order passed by this Court in Sabari v. Inspector of Police, 2019 (3) MLJ Crl 110, wherein the Bench had discussed in detail about the cases in which persons of the age group of 16 to 18 years were involved in love affairs and how in some cases ultimately end up in a criminal case booked for an offence under the POCSO Act.
Bench stated that it is imperative for this Court to draw the thin line that demarcates the nature of acts that should not be made to fall within the scope of the Act, for such is the severity of the sentences provided under the Act, justifiably so, that if the acted upon hastily or irresponsibly, it could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous.
Further, the Court stated that as rightly recognized in the above-cited case of Sabari v. Inspector of Police, 2019 (3) MLJ Crl 110,
“incidences, where teenagers and young adults fall victim to offences under the POCSO Act being slapped against them without understanding the implication of the severity of the enactment, is an issue that brings much concern to the conscience of this Court.”
POCSO Act was brought into force to protect children from offences of sexual assault, sexual harassment and pornography, pursuant to Article 15 of the Constitution of India and the Convention on the Rights of the Child.
A large array of cases filed under the POCSO Act seems to be those arising on the basis of complaints registered by the families of adolescents and teenagers who are involved in romantic relationships with each other.
Court expressed that it is not turning a blind eye to cases where the victim or survivor may, under the effect of trauma that they have undergone, studies on which show that they might tend to reconcile with the same by blaming themselves or convincing themselves that the element of consent was infact present. Nor is this Court scientifically justifying in toto, the genuineness or predicament of the accused in every case where it appears that the accused and victim child have been in a romantic relationship. That will depend on the facts and circumstances of each and every case.
In the instant matter, Bench noted that the 2nd petitioner clearly stated that she was the one who insisted that 2nd Respondent take her away from her home and marry her, due to the pressure exerted by her parents.
In light of the above-said incidents, parents or family lodge a complaint, the police registers FIRs for offences of kidnapping and various offences under the POCSO Act. Several cases under the POCSO Act fall under this category. As a consequence of such an FIR being registered, invariably the boy gets arrested and thereafter, his youthful life comes to a grinding halt.
Hence, due to the stringent nature of the POCSO Act, the acts of the boy would be called as an offence.
The objective of the POCSO Act was never punishing an adolescent boy as an offender who enters into a relationship with a minor girl.
An adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop, should essentially receive the support and guidance of their parents and the society at large. These incidents should never be perceived from an adult’s point of view and such an understanding will in fact lead to lack of empathy.
Therefore, it is high time that the legislature takes into consideration cases of the present nature involving adolescents involved in relationships and swiftly bring in necessary amendments under the Act.
Court in view of the above opined that the legislature has to keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act.
Main Issue to be addressed:
Whether this Court can quash the criminal proceedings involving non-compoundable offences pending against the second respondent?
Bench relied on the Supreme Court decision in Parbathbhai Aahir v. State of Gujrath, (2017) 9 SCC 641 and in State of Madhya Pradesh v. Dhruv Gurjar (2019) 2 MLJ Crl 10, wherein sufficient guidelines have been given that must be taken into consideration by this Court while exercising its jurisdiction under Section 482 CrPC to quash non-compoundable offences.
Supreme Court held that offences against the society with overriding public interest even if it gets settled between the parties cannot be quashed by this Court.
After examining the above, Court noted that the offences in question in regard to the present matter are purely individual in nature. Hence, Quashing the proceedings, will not affect any overriding public interest in this case and it will in fact pave way for the 2nd Petitioner and the 2nd Respondent to settle down in their life and look for better future prospects.
High Court quashed the criminal proceedings. [Vijayalakshmi v. State, 2021 SCC OnLine Mad 317, decided on 27-01-2021]