The Allahabad High Court has quashed the entire criminal proceedings including the FIR lodged in the case of rape and POCSO Act at Baradari police station in district Bareilly.
A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application under section 482 filed by Fakre Alam @ Shozil.
The Section 482 Cr.P.C application has been filed to quash charge sheet dated 25.9.2016, cognizance order dated 10.2.2017, non-bailable warrant dated 10.5.2022 and entire proceeding of Case under section 363, 366, 376(2N), 506 I.P.C and 6 POCSO Act, P.S Baradari, District Bareilly.
Contention of the counsel for the applicant is that in her statement u/s 164 Cr.P.C, the victim has stated that she had willingly married to the applicant and she has been residing with him as his wife. Thereafter, compromise was also entered between the parties regarding this case because victim as well as applicant have been residing as husband and wife and age of the victim is also above 18 years as per the medical examination.
The Court order dated 28.1.2023 directed the court below to verify the compromise entered between the parties.
The Court noted that,
In pursuance of the order of the Court, compromise between the parties has been verified by Additional Sessions Judge/Special Judge (POCSO Act), Bareilly in Special Criminal Case vide order dated 24.5.2023 which has been produced before the Court along second supplementary affidavit dated 30.5.2023, filed by counsel for the applicant. Here the sole question arises as to whether on the basis of a compromise offence u/s 376 I.P.C and POCSO Act can be quashed.
The Allahabad High Court in the case of Pravin Kumar Singh @ Pravin Kumar and 2 others vs State of U.P & another as well as in the case of Om Prakash vs State of U.P and another observed that once the case is made out on the basis of statement of victim girl then proceeding under POCSO Act cannot be quashed on the basis of compromise between the victim and accused because the offence under POCSO Act is offence against the society.
The Court found 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 victim would prepare to condone the conduct of the accused even though the charge is not compoundable. In such cases the Court can exercise its inherent power u/s 482 Cr.P.C even if the offence is non compoundable u/s 320 CrPC. Though the High Court should not normally interfere with the criminal proceeding involving sexual offence against women and children only on the basis of ground of settlement, however it is not completely foreclosed in exercising its extraordinary power u/s 482 Cr.P.C to quash such proceedings.
The Court opined that in such cases, a holistic approach ought to be adopted considering issue from different perspective, in order to identify the cases fit for compromise, keeping in mind: (i) the nature and effect of offence on the consciousnesses of society; (ii) the seriousness of injury, if any; (iii) voluntary nature of compromise between the accused and victim; and (iv) conduct to the accused person, prior to and after the occurrence of the purported offence or other relevant considerations.
In the case it is clearly established from the statement of victim recorded u/s 164 Cr.P.C as well as radiological examination of victim that she is above 18 years and the victim in her statement u/s 164 Cr.P.C has clearly stated that she got married to the applicant Fakre Alam on 10.7.2014 willingly, the court further noted that.
“Section 2(1)(d) of POCSO Act clearly defines the child who is below the age of 18 years but from the material available on record it appears that victim is above 18 years then no case under POCSO Act is made out and victim also stated u/s 164 Cr.P.C that applicant has not committed any sexual offence against her and since the date of marriage they have been residing as husband and wife and, her mother just to extract five lakh rupees from her husband (applicant), lodged the false case. In the medical examination also, no injury was found on the person of the victim and no opinion about sexual assault was given against the victim. Therefore, from the evidence on record it is also clear that no offence is made out against the applicant. Filing of the charge sheet against the applicant u/s 363, 366, 376; 2N, 506 I.P.C as well as Section 6 of POCSO Act was itself incorrect.
Therefore, the Court further opined that the proceedings under POCSO Act as well as u/s 376 I.P.C can be quashed if no case is made out from the material available on record but the police has filed charge sheet in routine manner without looking into the material collected during the investigation”, the Court observed while allowing the application.
In view of the above fact, the proceedings of Case under section 363, 366, 376(2N), 506 I.P.C and 6 POCSO Act, P.S Baradari, District Bareilly, is hereby quashed by the High Court.