While ruling out the possibility of compromise being a premise to quash FIR in a serious POCSO Act offence, the Kerala High Court in a most learned, laudable, landmark, logical and latest judgment titled Akhil Mohanan vs State of Kerala in Crl.MC No. 60 of 2024 and Crime No.810/2022 of Kunnathunadu Police Station, Ernakulam SC No.371 of 2023 of Fast Track Special Court, Perumbavoor which was heard finally on 22.11.2024 and then delivered on 16.12.2024 while dismissing the petition has reiterated without mincing absolutely just no words that serious offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) cannot be quashed on the basis of a compromise. We need to note that the Single Judge Bench comprising of Hon’ble Mr Justice A Badharudeen underscored emphatically that the stringent provisions of the POCSO Act are designed to address grave societal concerns and cannot be diluted through private settlements. The Bench after hearing the parties and reviewing precedents, unequivocally held that private settlements are not valid grounds for quashing proceedings in cases involving serious offenses under the POCSO Act. The Bench maintained clearly that, “Serious offenses under the POCSO Act cannot be settled through compromise, as they have a significant societal impact and are not merely private disputes.” Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice A Badharudeen sets the ball in motion by first and foremost putting forth in para 1 that, “This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure seeking the relief to quash Annexure-1 FIR, final report thereof and further proceedings in S.C.No.3/712023 on the files of Fast Track Special Court, Perumbavoor, against the petitioner.”
As we see, the Bench discloses in para 3 that, “Here the prosecution alleges commission of offences punishable under Sections 450, 376(2)(n), 354, 354A(1)(i), 354D(1)(i), 354D(1)(ii) of the Indian Penal Code (‘IPC’ for short), Section 4 r/w 3, 6(1) r/w 5(l), 8 r/w 7, 10 r/w 9(l), 12 r/w 11(iv), 15 of Protection of Children from Sexual Offences Act (‘POCSO Act’ for short) and Section 66E of Information Technology Act (‘IT Act’ for short).”
To put things in perspective, the Bench envisages in para 4 while elaborating on the prosecution case that, “The prosecution case is that the victim, who was aged 17 years, while studying for B.Sc Chemistry, the accused made acquaintance with her through, one of her friends during her schools days. Thereafter the accused used to accompany her while she was going to school and used to talk to her. Further the accused promised to marry the victim. During the period of COVID 19 pandemic, in order to attend online classes, the parents of the victim purchased and gave a mobile phone to the victim. Then the accused started to call her and sent messages through WhatsApp. When parents of the victim detected the same, the accused stopped calling and sending messages to her. Later the accused called the defacto complainant directly and thereafter the accused started to reach the house of the victim in the absence of her parents. On 14.02.2021 when her parents went for job, the accused reached her house at 10.30 a.m with an ice cream for her and they had talk between them for a long time. Thereafter, he compelled the victim to have sexual intercourse with him, despite her protest. Then on the promise of marriage, he forcefully subjected the victim to sexual intercourse ignoring her resistance and he left her home at 11.45 a.m. He continued the same at 10.30 a.m. on 22.04.2021 and continued the same thereafter on subsequent dates. According to the victim, the accused used condom while they were having coitus. This is the base on which prosecution alleges commission of the above offences.”
As it turned out, the Bench enunciates in para 5 that, “While seeking quashment of the proceedings, the learned counsel for the petitioner zealously argued that the allegations are false and none of the offence made out, prima facie against the petitioner. That apart, it is argued that the victim filed an affidavit stating that the matter has been settled. Therefore, the prayer for quashment is liable to be allowed.”
Be it noted, the Bench notes in para 7 that, “Whereas the learned Public Prosecutor strongly opposed quashment of a case under the POCSO Act on the submission that POCSO Act cases could not be settled on the strength of an affidavit filed by the victim subsequently. In the instant case, it is discernible that the accused started relationship with the victim offering to marry her and continued the same. In the meanwhile, on offering promise of marriage he had coitus with the victim repeatedly. In such a case, prima facie, the above offences are made out. In fact, serious offences under the POCSO Act could not be settled on the strength of affidavit filed by the victim at a subsequent stage even after attaining majority.”
It is worth noting that while citing a recent and relevant case law, the Bench notes in para 8 that, “In the decision reported in [2024 INSC 846], Ramji Lal Bairwa & Anr. v. State of Rajasthan & Ors. the Apex Court considered a case where prosecution alleged commission of offences punishable under Sections 354A, 342, 509 and 504 of IPC and Sections 7 and 8 of the POCSO Act as well as Sections 3(1)(r), 3(1)(s), 3(1)(b) and 3(2)(vii) of the Schedule Cast and Schedule Tribe (Prevention of Atrocities) Act, 1989 (`SC/ST Act’ for short), where a minor child victim was patted on her cheeks by the accused and he put his hand inside her bodice and rubbed her breast, where the High Court of Rajasthan quashed the proceedings despite the opposition of the learned Public Prosecutor where the dispute has been settled in between the victim and the accused. After discussing the matter at length, the Apex Court held in paragraphs 32 and 33 as under:
“32. In the decision relied on by the High Curt to quash the proceedings viz., Gian Singh’s case (supra) and the decision in Laxmi Narayan’s case (supra) in unambiguous terms this Court held that the power under Section 482 Cr.P.C could not be used to quash proceedings based on compromise if it is in respect of heinous offence which are not private in nature and have a serious impact on the society. When an incident of the aforesaid nature and gravity allegedly occurred in a higher secondary school, that too from a teacher, it cannot be simply described as an offence which is purely private in nature and have no serious impact on the society.
33. In view of the reasons as aforesaid and in the light of the decisions referred supra, the impugned order dated 04.02.2022 of the High Court in S.B.C.R.M.P No.1348/2022, quashing the FIR No.6/2022 dated 08.01.2022 and all further proceedings pursuant thereto solely on the ground that the accused and the complainant had settled the matter, invites interference. We have no hesitation to hold that in cases of this nature, the fact that in view of compromise entered into between the parties, the chance of a conviction is remote and bleak also cannot be a ground to abruptly terminate the investigation, by quashing FIR and all further proceedings pursuant thereto, by invoking the power under Section 482, Cr.P.C. In the said circumstances, this appeal is allowed. The impugned order dated 04.02.2022 of the High Court in S.B.C.R.M.P.No.1348/2022 is hereby quashed and set aside. Consequently, the FIR No.6/2022, investigation and criminal proceedings pursuant thereto subject to the nature of the report to be filed under Section 173(2), Cr.P.C., be proceeded with against the accused, in accordance with law.”
Most significantly and as a corollary, the Bench encapsulates in para 9 what constitutes the cornerstone of this notable judgment postulating that, “In view of the Supreme Court decision as discussed, the ratio in Vijayalakshmi’s case (supra) is per- incurium. Thus the legal position is apparent and comprehensive that criminal proceedings involving very serious offences under the POCSO Act could not be quashed on the ground that the accused and the complainant had settled the matter. That apart, in cases of this nature, the fact that in view of compromise entered into between the parties, the chance of a conviction is remote and bleak also cannot be a ground to abruptly terminate the investigation, by quashing FIR and all further proceedings pursuant thereto, by invoking the power under Section 482, Cr.P.C. An important aspect to be noted is that in cases where the victim’s statement under Section 164 of Cr.P.C was recorded, despite hostility of the victim on the premise of settlement, the prosecution can make use of the 164 statement to corroborate the evidence of the victim to get support for the prosecution allegations.”
It would be instructive to note that the Bench notes in para 10 that, “In the instant case, the prosecution records would show the offences alleged by the prosecution against the petitioner, prima facie, and therefore, quashment on merits also would fail.”
Resultantly and finally, the Bench then concludes by holding and directing in para 11 of this robust judgment that, “Hence this Crl.M.C fails and is accordingly dismissed. Registry is directed to forward a copy of this order to the jurisdictional court for information and further steps.”
In conclusion, we thus see that the Kerala High Court has most commendably adopted a zero tolerance approach to POCSO Act offence. It has made it pretty clear that compromise is not a basis to quash FIR in serious POCSO Act offence. It merits just no reiteration that it is the bounden duty of all the courts in India to adopt a similar approach in similar such cases and take such heinous offences most seriously where there is just no room for compromise of any kind under any circumstances! There can be definitely just no denying or disputing it!
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