The Allahabad High Court while dismissing an application said that the POCSO Act 2012 is a “Special Statute” and any offence under the “Special Statute” cannot be quashed on the basis of compromise.
A Single Bench of Justice Samit Gopal passed this order while hearing an application under section 482 filed by Sanjeev Kumar.
The application under Section 482 Cr.P.C has been filed by the applicant Sanjeev Kumar with the following prayers:-
“It is, therefore, Most respectfully prayed that the Court may graciously be pleased to set- aside/ quash the impugned cognizance order dated 16.2.2024 passed by Special Judge (POCSO) Act, Azamgarh in Special Session Trial No 54/2024, State Vs Sanjeev Kumar) and impugned Charge sheet dated 26.11.2023 filed against applicant under Section 376, 313 I.P.C and 3/4 of POCSO Act in Case Crime No. 360 of 2023, under Section 376, 313 I.P.C and 3/4 POCSO Act, 2012 as well as entire proceedings of the Case Crime No. 360/2023, under Section 376, 313 I.P.C and U/s 3/4 POCSO Act, 2012, P.S Bilariaganj District Azamgarh.
It is further prayed that the Court may graciously be pleased to set aside the order summoning order dated 16.2.2023 passed by Special Judge (POCSO) Act, Azamgarh passed in Special Session Trial No 54 of 2024, State Vs Sanjeev Kumar, Case under Section 376, 313 I.P.C and 3/4 POCSO Act, Police Station Bilariaganj, District Azamgarh.
It is further prayed that this Hon’ble Court may graciously be please to stay the further proceedings of the Special Session Trial No 54 of 2024, State Vs Sanjeev Kumar, Case under Section 376, 313 I.P.C and 3/4 POCSO Act, Police Station Bilariaganj, District Azamgarh pending in the Court of Special Judge (POCSO) Act, Azamgarh, during the pendency of this application before the Court, otherwise the applicant shall suffer irreparable loss and injury. And/or may be pleased to pass such other and further orders as the Court may deem fit and proper under the facts and circumstances of the case.”
The sole ground as argued before the Court is that subsequent to lodging of the FIR, conclusion of investigation and summoning the applicant by the trial court for offences under Sections 376, 313 IPC and Sections 3/4 POCSO Act vide order dated 16.02.2024 passed by the Special Judge (POCSO Act), Azamgarh a compromise dated 01.03.2024 has been entered into between the parties and affidavit dated 01.03.2024 has been filed by the victim/prosecutrix before the trial court along with a copy of the said compromise deed dated 01.03.2024 duly entered between the applicant and the victim and also an application dated 01.03.2024 that the said case be decided in terms of the said compromise and as such looking to the same, the said compromise be sent for verification and the proceedings against the applicant be quashed.
Counsel for the State opposes the prayer for quashing and submits that the date of birth of the victim is 30.05.2005 and the FIR was lodged on 13.10.2023 with the allegation that she was subjected to sexual assault since last three years and as such she was aged about 15 years at that point of time and was a minor.
It is argued that the victim was minor at the time of the incident, charge sheet was submitted under the various sections on which the trial court finding prima facie offence made out against the applicant summoned him under the said sections as above. It is argued that the said petition be dismissed as compromise in a case of this nature cannot be entertained.
The Court observed that,
In so far as the order of a co-ordinate Bench of the Court which is being relied by the applicant is concerned, the case is distinguishable with that on facts itself since the said Court in the said order has returned a finding that on the material available on record it appears that the victim was above 18 years of age and as such no case under the POCSO Act is made out. In the case there is no dispute of age and this Court cannot return a finding at this stage on the basis of arguments and pleadings regarding the age of the victim.
It is clear that the power under Section 482 of Code of Criminal Procedure should not be exercised in those prosecutions which involve heinous and serious offences like murder, rape, dacoity etc as such offences are not private in nature and have a serious impact on the society. However, for the offence alleged to have been committed under “Special Statute” like the Prevention of Corruption Act, the prosecution cannot be quashed merely on the basis of compromise between the victim and the offender.
In the case, the applicant is also facing trial for an offence under Sections ¾ of POCSO Act, 2012. Thus, where the applicant is facing Trial for an offence punishable under the Special Statute, then the prosecution cannot be quashed on the basis of compromise.
Thus, it is clear that where the prosecutrix is a minor below 18 years of age, then her consent would be immaterial. When an offence is made out against the accused irrespective of the fact that whether the prosecutrix was a consenting party or not, then certainly, the prosecution cannot be quashed merely on the ground that at a later stage the prosecutrix has entered into a compromise. Once the consent of the minor prosecutrix is immaterial for registration of offence, then such consent shall still remain immaterial for all practical purposes at all the stages including for compromise. Merely because, the minor prosecutrix has later on agreed to enter into a compromise with the applicant, would not be sufficient to quash the proceedings.
“Since the POCSO Act, 2012 is a Special Act, therefore, in view of the provisions of Sections 375 Sixthly of IPC, the consent of the prosecutrix is material. Thus, the Court is of the considered opinion that the prosecution of the accused for offence under Sections ¾ of POCSO Act, 2012 cannot be quashed merely on the ground that the prosecutrix has compromised the matter with the accused.
It is, thus clear that where the accused is facing trial for the offence of rape, then the factum of compromise under no circumstances can be of any help to him. They are crimes against the body of a woman. The honour of a woman cannot be put to stake by compromise or settlement.
In view of the same, since the sections as charged against the applicant are not compoundable, this Court cannot proceed for quashing the case on the basis of the compromise”, the Court observed while dismissing the application.