SC stays Kerala HC order quashing FIR in POCSO case citing compromise between the accused and the complainant

A Supreme Court bench comprising Justices Ajay Rastogi and Abhay S. Oka, on Friday, stayed a Kerala High Court’s order, issued on August 26, 2019, quashing a First Information Report (FIR) registered against an accused under the Protection of Children from Sexual Offences (POCSO) Act, 2012 only on the basis of a compromise being carried out between the parties.

The bench, while hearing the Kerala Government’s appeal against the order, considered its contention that quashing the FIR is not permissible in view of the judgment of the Supreme Court in State of Madhya Pradesh vs. Laxmi Narayan & Ors. (2019).

The bench issued notice, returnable in eight weeks while staying the High Court’s order, and permitted the state police to undertake further investigation in the case.

In the instant case, The State of Kerala vs. Hafsal Rahman N.K. & Ors., the accused, who was 36 years old, and belongs to the Malappuram district in the state, was booked for offences under Sections 9(f) and 10 of the POCSO Act. Section 9(f) deals with the punishment of the accused who is on the management or staff of an educational institution or religious institution. Section 10 prescribes stringent punishment for aggravated sexual assault, and lays down a minimum of five years imprisonment, extendable to seven years and with fine.

The Kerala High Court noted in its order, issued by Justice Alexander Thomas, that the entire dispute between the petitioner and the respondents had been settled “amicably” with the the minor girl’s mother submitting an affidavit that she had no objection towards the quashing of the impugned criminal proceedings pending against the accused. Before the Kerala High Court, the prosecution, on the basis of the inquiry conducted by the investigating officer, claimed that the settlement arrived at between the accused and the complainant appeared to be genuine.

The accused, who was a teacher of the victim girl, allegedly called the student to his room, and touched her cheeks and kissed on her forehead. The High Court reasoned that in a catena of decisions, the Supreme Court has held that, in appropriate cases involving even non-compoundable offences, the High Court can quash prosecution by exercise of the powers under Section 482 of the Criminal Procedure Code, if the parties have really settled the whole dispute or if the continuance of the prosecution would not serve any purpose, other than wasting the precious time of the court. The High Court, in particular, cited Gian Singh vs. State of Punjab (2012) and Narinder Singh & Ors. vs. State of Punjab (2014) (particularly paragraph 29) in favour of quashing the FIR against the accused on the ground of settlement of the disputes between the parties.

In Laxmi Narayan, Justice M.R. Shah of the Supreme Court held that the High Court in that case has not at all considered the relevant facts and circumstances of the case, more particularly the seriousness of the offences and its social impact, while quashing the FIR as a result of the settlement between the parties, though it was a non-compoundable offence. The High Court has not at all considered the distinction between a personal or private wrong and a social wrong and the social impact, Justice Shah held in that case.

In the case at hand, the High Court has not at all taken pains to scrutinise the entire conspectus of facts in proper perspective and has quashed the criminal proceedings mechanically, Justice Shah had observed.

In the instant case, the Kerala High Court appears to have missed Justice Shah’s judgment, delivered on March 5, 2019, even though it was pronounced by a three-judge bench as a result of conflicting decisions by two previous benches of the Supreme Court in similar cases. The Kerala High Court relied on the Gian Singh and Narinder Singh judgments, but it missed Justice Shah’s reinterpretation of these judgments in the Laxmi Narayan case.

The Leaflet