“POCSO Act Led To Increase In Vindictive Litigation”: Orissa High Court Quashes Cases Based On Mutual Settlement, Marriage

The Orissa High Court has expressed concerns about the misuse of the provisions of the Protection of Children from Sexual Offences Act, 2012 ('the POCSO Act'), especially by way of prosecution of young males in cases of mutual adolescent romantic relationship.While allowing a batch of petitions praying to quash criminal proceedings under the stringent legislations, the Single Bench of Justice Sibo Sankar Mishra observed– “The POCSO Act was enacted with the ultimate objective of prohibiting non-consensual and forced sexual relationships with children, including child sexual abuse and sexual harassment. While the stringent provisions of the POCSO Act have contributed positively to reducing instances of sexual violence against children, they have also led to an increase in vindictive litigation, with false cases being filed against individuals under the act. However, it was never the legislature's intention to prosecute romantic relationships between young adults.”Brief Background & Issue for ConsiderationThe Court was in seisin over a batch of petitions filed under Section 482 of the CrPC with prayers to quash FIRs and criminal proceedings under the POCSO Act against a number of persons in different cases of sexual intercourse arising out of adolescent romantic relationships or promises of marriage. In all these cases victims were below the age of majority, i.e. 18 years while the alleged offences were committed.“The growing instances where teenagers were involved in a romantic relationship with each other falls victim to the offences under the POCSO Act is a matter of concern. The teenage romance often turns into cohabiting consensually and the girl alleges rape due to pressure from the family, fear of the society or when the boy refuses to marry. Since sexual intercourse with a minor is considered “statutory rape”, the criminal case is registered,” it added.Taking into account the fact that in all the cases, the parties claimed to have settled the disputes between them and they do not intend to pursue the litigation anymore, Justice Mishra formulated the vital question for consideration as to whether the High Court can quash criminal proceedings, particularly in heinous cases like rape, on the basis of mutual settlement between parties.Power of High Court to Quash Rape Cases On the Basis of Mutual SettlementThe Court noted that as per the provision of Section 320 of the CrPC, compounding of certain offences has been made permissible. It was also underlined that some offences can be compounded between parties inter se and some other offences can only be compounded with the permission of the Court. While discussing about the interplay between the provisions of Sections 320 and 482 of the CrPC, the Bench referred to the three-Judge Bench decision of the Apex Court in Gian Singh v. State of Punjab wherein it was observed:“Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed.”However, the top Court had put a note of caution that before exercising such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be quashed even though the victim or victim's family and the offender have settled the dispute, it was clarified.Decision of Various High Courts on Similar IssuesConsidering the above position of law, the Court went on to examine the decisions of different High Courts on similar issues, i.e. cases under the POCSO Act arising out of adolescent consensual romantic and sexual relationships.The Court noted the observations and decisions of the Delhi High Court in the cases of Kapil Gupta v. State of NCT of Delhi & Anr., Amar Kumar & Anr. v. The State (Govt. of NCT of Delhi) & Anr., Arjun Kamti v. The State of GNCT of Delhi & Ors., AK v. State Govt. of NCT of Delhi & Anr., Vijay Kumar v. The State Govt. of NCT of Delhi & Anr. and Amit Kumar v. State NCT of Delhi wherein it was broadly held that the objective behind the enactment of the POCSO Act was not to criminalize adolescent romantic relationships.It also cited the decision of the Kerala High Court in Vishnu v. State of Kerala & Anr. where the Court laid down broad principles for compounding of sexual offences against women and children upon compromise with accused. Reference was also made to the judgment of the Bombay High Court Nauman Suleman Khan v State of Maharashtra & Anr. wherein the Court quashed an FIR under the POCSO Act for penetrative sexual assault, as the victim girl said that she and the accused were...

“POCSO Act Led To Increase In Vindictive Litigation”: Orissa High Court Quashes Cases Based On Mutual Settlement, Marriage

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