Chandigarh, Aug 1 (PTI) The Punjab and Haryana High Court has ruled that an FIR under the Protection of Children from Sexual Offences (POCSO) Act for a minor’s rape cannot be quashed on the ground of a compromise even if the victim subsequently married the accused and had children.
The court held that such compromises are unenforceable in law, being illegal and also contrary to public policy.
At the time of the registration of FIR in 2013, the victim was a 13-year-old girl and her father had then alleged that she was enticed away by the accused.
The accused allegedly raped the girl in Gurugram and was declared a proclaimed offender after being on the run for nine years before being arrested in 2023.
The FIR was registered in August 2013 under the provisions of the IPC and POCSO Act in a police station in Gurugram.
The accused approached the high court and sought the quashing of the FIR as he married the survivor and they had four children. However, the court dismissed his plea.
“In fact, the competence of minors to consent is inherently ambiguous, even in circumstances where such consent appears to be given freely,” the bench of Justice Jasgurpreet Singh Puri observed.
The court, in its July 29 order, also observed that the rationale behind fixing the age of marriage and consent for sexual activity to a fixed statutory minimum is based upon the recognition that minors lack the requisite mental maturity and psychological competence to give informed consent to sexual acts.
“This position emanates from a protectionist objective, whereby the law operates on the presumption that minors lack the capacity to fully apprehend or appreciate the nature, implications and potential consequences of indulging in sexual activities,” the court held.
The petition had been filed under Section 528 of BNSS, 2023 (earlier Section 482 CrPC) for quashing of an FIR registered in August, 2013, under Sections 363, 366-A and 34 IPC (Sections 376 IPC and Section 4 of POCSO Act added later on), registered in a police station in Gurugram on the basis of compromise with the victim and the complainant.
The present petition had been filed by the accused for quashing of the FIR based on a compromise which was stated to have been entered into by the brother of the petitioner with the respondents who are the complainant and the victim.
“….The law provides ex-ante protection to minors by criminalising sexual activities involving persons below eighteen years of age, who by virtue of their age are deemed to be legally incapable of giving informed consent.
“In this way, the POCSO Act has adopted the ‘brightline rule’ which is based upon the principle that minors do not possess the legal or developmental capacity to give informed consent in matters of sexual activity, and reflects a clear and consistent legislative intent to create an unambiguous zone of protection for minors from sexual exploitation…,” the court said.
The court observed that the allegations pertain to the offence of rape committed upon a minor girl, attracting the provisions of the POSCO Act, FIR and its consequential proceedings cannot be quashed based upon compromise.
It was held that the offences under the POCSO Act are statutory crimes against society and marriage, with the victim, especially where she is a minor, cannot absolve the accused of criminal liability and normalising such compromise undermines the deterrent effect of the POCSO Act and sends a regressive message that child sexual abuse can be legitimised via subsequent marriage and erodes public confidence in child protection laws.
According to the reply filed by the State, after the FIR was registered, the petitioner was later apprehended from Bihar along with the minor-victim who was recovered from the custody of the petitioner.
The petitioner was granted the concession of regular bail during the course of trial but he misused the concession of bail and thereafter, he was declared a proclaimed person on December 19, 2014.
He was again apprehended by the police on December 21, 2023 in Amritsar after a long gap of nine years. This was after he was declared a proclaimed person by the trial court.
During the hearing, the petitioner’s counsel said the matter has been amicably settled between the parties with the intervention of the “respectables” and it has been stated in the “compromise” that the FIR was lodged on the basis of some misunderstanding and the trial is still pending.
He submitted that considering the fact that the matter has been compromised between the parties, the present FIR may be quashed based on compromise.
He further submitted that the victim had left her house on her own free will and got married with the petitioner and thereafter, four children were born out of the said wedlock and the victim has otherwise also attained the age of majority.
Therefore, considering the facts and circumstances of the present case, whereby the petitioner and respondent victim have already got married to each other and four children were born out of the wedlock, it will be just and proper in case the FIR is quashed based on compromise to prevent miscarriage of justice, the counsel had submitted. PTI SUN VSD KSS KSS
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