Serious POCSO Offences Can Be Quashed On Settlement Between Parties If There Exist 'Extreme Mitigating Circumstances': Kerala High Court

While quashing two cases under the Protection of Children from Sexual Offences (POCSO) Act where the accused and victims got married, the Kerala High Court observed that though generally POCSO offences cannot be quashed on the ground of settlement between parties, however, in "extreme mitigating circumstances", not quashing the proceedings may result in injustice.“Generally, serious offences having a sexual overtone, like rape under the Penal Code, and penetrative sexual assault etc., under the POCSO Act cannot be terminated by quashing the same, acting only upon the settlement between parties. It is indeed the offence against the society and not a private issue between the petitioner and the defacto complainant. However, in cases where there exist extreme mitigating circumstances, adherence to the Rule will work out injustice. Suffice to say that the choice in this regard will have to be taken based on the attendant facts; and not on the basis of nomenclature of the statute”Justice C. Jayachandran opined that there cannot be an absolute stand that no POCSO case can be quashed. Stating that POCSO offence can be quashed in bona fide cases, the Court observed, "I am of the opinion that, merely because the offences under the POCSO Act is alleged, there cannot be an absolute proposition of law that the proceedings cannot be quashed based on settlement between the parties, especially when the settlement is genuine and bonafide so as to ultimately result in the marriage between the accused and the victim. As held in many cases, each case will have to be addressed in the peculiar facts obtaining therein, and there cannot be an en bloc conclusion that the quashment is wholly impermissible in cases involving POCSO offences."The Court referred to the Supreme Court's decision in Ramji Lal Bhairwa and Another v State of Rajasthan and Others (2024 LiveLaw (SC) 865), where it was had held that offences under POCSO cannot be quashed based on settlement between the parties. However, the High Court observed that the facts in Ramji Lal were different as it was a case where a teacher made sexual advancements on his pupil. The High Court relied on its decision in Vishnu v State of Kerala (2023) where it was held that the High Court can exercise its extraordinary powers to quash proceedings involving sexual offences against women and children to do complete justice to the parties.In the instant petitions, there was a relationship between the parties which led to a physical relationship followed by their marriage. The victim in both the cases submitted affidavit before the effect that the matter has been settled between them. Pursuant to the filing of the affidavit, the Court directed the Investigating Officers to get the statement of the victims. The victims held their stand before the officer.The first case was that the accused committed penetrative sexual assault repeatedly on the victim due to which she became pregnant. He was alleged of committing offences under Section 376 of IPC, Sections 3(a), r/w Section 4, 5(ii)(j) and (l) and Section 6 of POCSO Act. The second case was that the accused enticed the victim girl of 17 years from her lawful guardianship and committed penetrative sexual assault on her repeatedly and the girl got pregnant. She later gave birth to a baby girl. The accused was alleged of committing offences under Sections 363, 366(A), 370 and 376(2)(n) of the Penal Code and Sections 5(i) and 5(j)(ii) r/w Section 6 of the POCSO Act. The victim filed an affidavit stating that they are married and living together with their 4 year old daughter. She also stated that she was pregnant now. Further, she said that the accused sent her to pursue higher studies and she was now doing B.SC nursing. She also stated that the accused was taking care of her and their child.Considering the facts of the case, the Court was of the view that if proceedings are allowed to continue, the trauma caused to the victim will continue. It noted that continuation of proceedings will cause “chaos, confusion and even havoc” in the happy life of the victim."Unless the criminal proceedings are terminated by quashing the same, there will be utter chaos, confusion and even havoc in the life of the victim who married the accused, and who is leading a happy life. In other words, the life of the victim, the accused and the child, if any, in that relationship will be ruined. Per contra, If the offence is quashed, it will bring in harmony, peace and happiness, thus promoting their family life." The Court also noted that the chances of a conviction in the case are bleak, as it is improbable that the victim would testify against her husband. It said "When the crucial witness is the victim, who had married the accused, there exists little chance for her to speak against her own husband/accused, wherefore, the chances of conviction will be too bleak and remote. In other words, no fruitful purpose will be served by continuance of the proceedings."Amicus...

Serious POCSO Offences Can Be Quashed On Settlement Between Parties If There Exist 'Extreme Mitigating Circumstances': Kerala High Court

Manju Elsa Isac

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