In a case of Protection of Children from Sexual Offences Act, 2012, where the offender married the child victim and prayed for quashing legal proceedings against him, the Himachal High Court has referred the matter to a larger Bench.
An FIR was registered against the petitioner underSection 4 (punishment for penetrative sexual assault) of the POCSO along with Sections363 (punishment for kidnapping),376(punishment for rape),212 (harbouring offender) and120B (punishment of criminal conspiracy) of the Indian Penal Code, 1860 on March 8, 2020.
The petitioner was released on bail on September 21, 2020 by the Himachal Pradesh High Court.
The petitioner has filed a petition before the Himachal Pradesh High Court seeking quashing of the FIR and the proceedings underSection 482 (saving of inherent power of high court) of the Code of Criminal Procedure (CrPC), 1973 on the grounds that the parties have “amicably settled the matter”.
The petitioner has alleged that the child victim was in love with the petitioner.
As per the child victim’s statement made to the magistrate underSection 164 (recording of confession and statements) of the CrPC, she expressed her intention to solemnise marriage with the petitioner.
The child victim, her family members and the petitioner are residents of the same village.
Consequently, with the consent of the child victim’s parents, the petitioner and the child victim married on March 9, 2023. Since then, they have been residing in the matrimonial home as husband and wife.
On April 17, the child victim, her family and the petitioner entered into a compromise and as a consequence of that, all three parties do not wish to continue the legal proceedings.
The court stated that the inherent powers under Section 482 are of wide plentitude with no statutory limitation. But these powers must be used to secure the ends of justice or to prevent abuse of the process of any court.
In cases where the powers have to be exercised to quash criminal proceedings, due regard must be given to the “nature” and “gravity” of the crime.
In this regard, the Supreme Court held: “Heinous and serious offences of mental depravity or offences such as murder, rape and dacoity, cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society.”
The court added that any compromise between the victim and the offender in relation to any offences under the special statute “cannot provide for any basis for quashing criminal proceedings involving such offences”.
In Narinder Singh, the court added that while exercising the inherent powers under Section 482, it must “examine whether the possibility of the conviction is remote and bleak and the continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases”.
The court said: “We would like to clearly state that in a case of rape or attempt to rape, the conception of compromise under no circumstances can really be thought of.
“Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error.”
The court held that once an FIR or a complaint is lodged and criminal machinery is set in motion, it becomes a matter between the State and the accused. Therefore, an informant has no right in law to withdraw the complaint of a non-compoundable offence of a “grave, serious and heinous nature, which impacts society”.
What did the Himachal Pradesh High Court say?
On November 4, Justice Virender Singh of the high court held that the “compromise of the child victim and her parents with the petitioner is inconsequential”.
The court said: “Accepting such a settlement would also encourage other criminals, involved in such type of heinous offences, to indulge in such type of activities and then, to enter into a compromise, with the complainant or the child victim, with the ulterior motive to defeat the object of the legislature for enacting this special statute, like POCSO.”
The high court stated that the inherent powers under Section 482 CrPC must be exercised in the “rarest of the rare cases”.
The court took into consideration the Sahil and Sakshi cases relied on by the petitioner and held that the precedents of the Supreme Court mentioned above have not been considered in these cases.