Kerala High Court Enunciates Broad Principles For Compounding Of Sexual Offences Against Women & Children Upon Compromise With Accused

The Kerala High Court on Wednesday laid down certain broad principles to be borne in mind while considering pleas to quash criminal proceedings involving non-compoundable sexual offences against women and children, upon a compromise between the accused and the victim, invoking Section 482 of the Code of Criminal Procedure. 

The Single Judge Bench of Justice Kauser Edappagath while hearing a batch of quashing petitions said no straitjacket formula can be formulated as each case is unique, and would have to be decided based on its peculiar facts.

The Court went on to add, 

"...where the High Court has such facts on record which clearly exhibit that the criminal prosecution involving non-compoundable sexual offences against women and children will result in greater injustice to the victim, its closure would only promote her well-being, and the possibility of a conviction is remote, it can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach and very well decide to quash such proceeding upon a compromise between the accused and the victim after taking into account all the relevant facts and circumstances of the particular case including the nature, magnitude, consequences of the crime and genuineness of the compromise. Needless to emphasize, the sexual offences which are grave, heinous, and gruesome in nature shall never be the subject matter of compromise". 

The petitioners in the batch of cases before the Court were all involved in sexual offences either under the IPC or under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), or both, and were seeking to quash the proceedings on the ground of settlement with the victim.

They argued that under Section 482 Cr.P.C., the High Court is vested with the jurisdiction to annul an FIR or criminal proceeding in appropriate cases where the offender and the victim have settled their dispute notwithstanding the fact that the offence involved is a sexual offence against women or children. It was submitted that when the matter has been amicably settled, the victim would not support the prosecution case, and the continuation of proceedings, in such circumstances, would be a waste of judicial time and public money. 

On the other hand, the Public Prosecutors argued that rape or sexual offence against women or children is a heinous crime against society, and any compromise between the victim and the offender could not ordinarily provide for any basis for quashing the criminal proceedings. It was further submitted that compromises would legalize rape and offer an escape route to the perpetrators.

Broad Principles To Be Borne In Mind While Exercising Power Under Section 482 Cr.P.C. 

The Court noted that although no specific provision has been incorporated in the Cr.P.C. for compounding any offence other than those mentioned in Section 320 Cr.P.C., there may still be cases where the victim would be prepared to condone the offensive conduct of the accused, even though the offence charged is non-compoundable. In such cases, the Court observed that recourse could be had to the inherent powers of the Court exercisable under Section 482 Cr.P.C., even if the offence is non-compoundable under Section 320Cr.P.C. The Court also went through the various judgments of the Apex Court and several High Courts in this regard, and the different stance adopted in each of those.

Based on the same, the Court observed that although the High Court should not normally interfere with the investigation/ criminal proceedings involving sexual offences against women and children only on the ground of settlement, however, it is not completely foreclosed in exercising its extraordinary power under Section 482 Cr.P.C. or Article 226 to quash such proceedings in ‘extraordinary circumstances’ to do complete justice to the parties.

The Court opined that in such cases, a holistic approach ought to be adopted considering the issue from different perspectives, in order to identify the cases fit for compromise, keeping in mind: (i) the nature and effect of the offence on the consciousness of the society; (ii) the Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; and (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence or other relevant considerations. 

The Court thus proceeded to enunciate certain broad principles that Courts ought to remember while exercising its power under Section 482 Cr.P.C. in this regard. 

A. Sexual Assault on False Promise of Marriage 

The Court observed that in such cases, the crucial issue to be decided would be as to whether the allegation indicates that the accused had given a promise to the victim to marry, which at the inception was false and based on which the victim was induced into a sexual relationship. The Court noted that without such an allegation or proof, the offence of rape will not be attracted.

"If the accused has not made the promise to seduce the prosecutrix to indulge in sexual acts, such an act will not amount to rape. So also, in a case where the allegation is that the accused had sexual intercourse with the victim after obtaining her consent by giving a promise of marriage and when he subsequently marries her, it really means fulfilment of the promise made by the accused to the prosecutrix and the offence may not get attracted," the Court observed. 

However, the Court held that in cases where a married woman had consensual sex with a man, or an unmarried woman had sex with a married man knowing that he was married induced by the promise of marriage, the offence of rape would not get attracted since she knows that marriage by or with a married person is illegal, and such a promise cannot be honoured.

It further held that where the victim agreed to have sexual intercourse on account of her love and passion for the accused or where the accused could not marry her on account of  circumstances beyond his control, the offence would not be attracted, and there is no point in not exercising the jurisdiction under Section 482 Cr.P.C. to quash the proceedings on the ground of compromise.

In cases where the victim alleged that the sexual assault or rape was forceful or against her will, but later, got married to the accused after settling the dispute, the Court observed, 

"In most of those cases, the victim admits that the allegation of rape was levelled only because the accused refused to marry her. Allowing prosecution to continue in those cases would only result in the disturbance of their happy family life. On the contrary, the closure of such a case would promote their family life. In such cases, the ends of justice demand that the parties be allowed to compromise. However, the Court must ensure that the marriage is not a camouflage to escape punishment and the consent given by the victim for compromise was voluntary. 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 the continuation of the proceedings would cause injustice to her". 

B. Acknowledged Physical Relationship Between Adults 

The Court held that as per Section 376 IPC, the acknowledged physical relationship between two adults is not rape, however, in certain circumstances, the victim make a complaint alleging that it was forceful. 

"When those types of cases come up for quashing on the ground of settlement, if the Court, on perusal of the statement of the victim, the materials collected during the investigation as well as the affidavit of the victim, finds that the alleged sexual intercourse was consensual, there is no point in allowing such redundant criminal proceedings to continue only to burden the already overburdened criminal courts further," the Court observed. 

C. Teen Romance 

The Court observed that growing incidents of teenagers involved in romantic relationship with each other falling victims to the offences under the POCSO Act is another issue of concern. The Court noted that such romantic relationships lead to consensual cohabitation, and subsequently, the girl might allege rape due to pressure from family, fear of society or when the boy refuses to marry her, pursuant to which crime is registered, since sexual intercourse with a minor is regarded as 'statutory rape'. The Court in this light, pondered upon whether such sexual assault cases against minors could be quashed based on compromise. 

Taking note of the provisions of Section 320(4) CrPC where any person competent to contract on behalf of a minor or lunatic could compound such an offence on their behalf; Order XXXII Rule 7CPC; the United Nations Convention on the Rights of the Child, 1989; and Section 2(9) of the Juvenile Justice (Care and Protection of Children) Act, 2015 which defines 'best interest of the child', the Court observed that while dealing with the petitions moved by the parent or guardian of the sexual assault victims to quash the criminal proceedings on the ground of compromise, the Court ought to consider certain factors. It stated that these include whether the allegations prima facie constitute the ingredients of the offence, whether the settlement is in the best interest of the minor victim and whether continuance of the proceedings against the accused and the participation of the minor victim in that proceedings would adversely affect the mental, physical, and emotional well-being of the latter. 

D. Child Sexual Abuse (CSA) or Intrafamilial Sexual Abuse

The Court observed that most instances of incest occur between a father and daughter, with certain others being committed by stepfather, older male relatives, friends who have access to children within the family setting, and by people normally trusted by parents.

The Court observed that while CSA is a negative experience that often affects survivors to varying degrees throughout their lives, such abuse committed by a parent or other relative is associated with particularly severe psychological symptoms and physical injuries for many survivors, with survivors of father-daughter incest more likely to report feeling depressed, damaged, and psychologically injured than survivors of other types of abuse. It thus went on to hold:

"The mental trauma and agony the helpless child underwent each time her own father, stepfather or close relative sexually abused her cannot be lost sight of by the court while considering the plea to quash the proceedings on the ground of settlement. That apart, in such cases, the Court cannot always be assured that the consent given by the victim in compromising the case is voluntary. There is always the possibility that she is pressurized by the convict or by her own mother, who, in most cases, supports the accused. Thus, any compromise between the victim and the offender in relation to an offence of incestuous sexual assault could not normally provide any basis for quashing the criminal proceedings". 

The Court reminded that the aforementioned were only the 'broad principles' to be kept in mind while such cases were decided, and that each case would certainly have to be decided on its own peculiar facts. 

Each petition before the Court were accordingly considered on their own merits in accordance with the aforementioned broad parameters and disposed of. 

Case Title: Vishnu v. State of Kerala & Anr. and other connected matters

Citation: 2023 LiveLaw (Ker) 234 

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