POCSO Cases Can Be Quashed By Consent U/S 528 BNSS; Discretion To Be Exercised As An Exception & With Caution: Meghalaya High Court
The High Court held that although the POCSO Act is a special statute, there is no absolute bar on quashing proceedings by consent under Section 528 BNSS, but such power must be exercised sparingly, with due care, and only in exceptional circumstances to secure the ends of justice.
The High Court of Meghalaya has held that quashing of criminal proceedings under the Protection of Children from Sexual Offences Act, 2012, by consent of the parties is permissible under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, even though the statute is a special law, provided such power is exercised with caution and only in exceptional cases.
The Court was hearing a reference made by a learned Single Judge on the question whether proceedings under the POCSO Act can be quashed by consent of the accused and the victim, particularly in light of the overriding nature of the statute.
A Division Bench comprising Chief Justice Revati Mohite Dere and Justice H.S. Thangkhiew observed that “quashing of a POCSO case under Section 528 BNSS by consent, is permissible even if it is a special statute and there is no specific exclusion of any present law/custom, ... however, the said discretion has to be used with due care and caution and circumspection in exceptional cases, to do justice".
Advocate L. Khiangte appeared for the petitioners, while Advocate General A. Kumar and Amicus Curiae S.P. Mahanta assisted the Court.
Background
The petition arose from an FIR alleging offences under Sections 5(j)(ii) and 6 of the POCSO Act, where the prosecutrix, aged 16 at the time, was alleged to have been sexually assaulted by the accused, resulting in pregnancy.
The accused and the prosecutrix approached the Court jointly seeking quashing of the proceedings, stating that they were in a consensual relationship, were living together as husband and wife, and had a child from the relationship. The complainant, who was the grandmother of the prosecutrix, also expressed no objection to the quashing.
The matter was referred to a Division Bench due to divergence of judicial opinion on whether such proceedings could be quashed by consent, given the nature of the POCSO Act.
Court’s Observation
The Court undertook a detailed examination of the scope of its inherent jurisdiction under Section 528 of the BNSS (earlier Section 482 CrPC), reiterating that such power is of wide amplitude and exists to “secure the ends of justice” and “prevent abuse of the process of any Court.”
Relying on Gian Singh v. State of Punjab (2012) 10 SCC 303, it observed that “inherent power is of wide plenitude with no statutory limitation… however… must have due regard to the nature and gravity of the crime,” thereby emphasizing that even though the power is expansive, its exercise must be guided by judicial restraint and the seriousness of the offence.
The Court acknowledged that offences under the POCSO Act are grave in nature and not merely private disputes, noting that the statute is enacted to protect children and that “the consent of the child below the age of 18 years is immaterial.” At the same time, it recognised that the legal framework must be applied in light of contemporary realities, observing that “a large number of cases pertaining to consensual adolescent/teenage relationship… have risen… after the increase of the age of consent from 16 to 18 years,” thereby highlighting the growing intersection between statutory rigour and social realities.
The Court then traced judicial precedents governing quashing of proceedings based on compromise, referring to Narinder Singh v. State of Punjab (2014) 6 SCC 466 and Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641, and reiterated that such power can be exercised in appropriate cases where continuation of proceedings would result in injustice. It emphasised that while heinous offences ordinarily cannot be quashed, the facts of each case must be carefully evaluated, particularly where the dispute bears elements of personal or consensual relationships.
The Court further examined evolving judicial discourse around consensual adolescent relationships, including observations from various High Courts and the Supreme Court, noting the phenomenon of the “Romeo–Juliet cases.” It observed that in such cases, “the facts of each case… the age proximity, voluntariness of the relationship and the future well-being of the individuals… must be taken into consideration,” thereby underscoring that mechanical application of law may lead to disproportionate consequences.
The Court undertook a contextual analysis of the social realities prevailing in the State of Meghalaya, including its matrilineal system, cultural practices, and recognition of relationships arising from cohabitation. It noted that rigid application of the law, without regard to such socio-cultural factors, may produce outcomes that are “disproportionately punitive, socially disruptive and contrary to the rehabilitative and protective objectives” of child-centric legislation, particularly in cases involving consensual relationships between adolescents.
The Court also emphasised that the administration of criminal law cannot be divorced from lived realities, observing that “the administration or enforcement of the law cannot be divorced from lived realities… rendering justice demands… fairness, compassion and empathy.” It highlighted that in several cases, continuation of prosecution may adversely affect not only the accused but also the victim and the child born from such relationships, thereby necessitating a balanced approach between deterrence and rehabilitation.
While holding that quashing of POCSO proceedings by consent is permissible, the Court laid down safeguards for the exercise of such discretion. It held that the Court must ensure that the consent of the victim is genuine and informed, observing that “it is necessary that the victim places her affidavit… and… may be sent… to ascertain whether the consent is an informed consent,” and that appropriate verification, including reports from competent authorities, may be required.
The Court concluded that in cases where the parties are married or living together and have a child, continuation of prosecution may cause greater injustice, noting that “sending the boy to jail would not serve the cause of justice… rather it would cause great injustice to the victim and the child.” It thus held that the power to quash must be exercised in exceptional cases, with due care and circumspection, to balance the objectives of the POCSO Act with the overarching mandate of doing complete justice.
Conclusion
The High Court answered the reference by holding that there is no absolute bar to quashing POCSO proceedings by consent under Section 528 BNSS, but such power must be exercised sparingly and in exceptional cases, having regard to the facts and circumstances of each case.
The Court emphasised that while the POCSO Act serves a vital protective purpose, its application must be balanced with considerations of justice, fairness, and the lived realities of the parties involved.
Cause Title: S & Anr. v. State of Meghalaya & Ors.
Appearances
Petitioners: L. Khiangte, Advocate; Th. Rakesh, Advocate
Respondents: A. Kumar, Advocate General with R. Gurung, Addl PP; A.H. Kharwanlang, Addl Sr GA; Advocates S.P. Mahanta (Amicus Curiae) with D. Dkhar