Rahul Kumar Choudhury and Anr v. The State of Meghalaya and Anr

JUDGMENT AND ORDER (ORAL)

¶1Heard Mr. S. Pandit, learned counsel appearing on behalf of the petitioners as well as Mr. S. Sengupta, learned Addl. PP appearing on behalf of the State respondent No. 1 and Ms. M.L. Tlau, learned counsel appearing on behalf of the respondent No. 2.

¶2It is the submission of the learned counsel for the petitioners that the petitioner No. 1 and the petitioner No. 2 were in a love relationship

since the year 2018. In course of their relationship, as is common in a relation between young couples, some misunderstanding cropped up which resulted in both of them to consume poisonous substance (phenyl) on

18.10.2018. It is perhaps because of this incident that the respondent No. 2 who is the father of the petitioner No. 2 herein lodged an FIR on

24.10.2018 against the petitioner No. 1 before the Officer-in-Charge, Pasteur Beat House, Shillong, East Khasi Hills District, alleging that his minor daughter aged about 17 years or so, was forcefully taken from the school premises by the petitioner No. 1 and who had also sexually assaulted his minor daughter. As a result of the said sexual assault, his daughter i.e. the petitioner No. 2 herein had attempted to commit suicide by consuming phenyl, wherein she was admitted in Woodland Hospital, Shillong.

¶3The Officer-in-Charge, Pasteur Beat House, taking cognizance of the said FIR, had caused investigation to be launched upon registering the same as Shillong Sadar P.S. Case No. 213 (10) of 2018 under Section 3/4/5(j)(ii)(1)/6 of the POCSO Act. The petitioner No. 1 was also arrested in connection with the said case, but was released on bail after 3(three) months.

¶4In the meantime, the Investigating Officer (I/O) had completed the investigation, and has submitted the charge sheet on 02.11.2019, inter

alia, finding that a prima facie case under Section 3(a)(c) 4/5(1)/6 of the POCSO Act is found well established against the accused/petitioner No. 1. The case was then registered as Spl. POCSO Case No. 28 of 2020 and is now pending before the Court of the learned Special Judge (POCSO), Shillong.

¶5The learned counsel for the petitioner has further submitted that in the meantime, the petitioner No. 1 and petitioner No. 2 are since married, and on attaining the age of majority, the petitioner No. 2 was married to the petitioner No. 1 on 14.01.2020 as per Hindu Rites and Rituals, copy of the marriage certificate has also been enclosed in this petition and marked as Annexure-IV. Out of this wedlock, the petitioners were blessed with a male issue on 19.01.2021 and the petitioner No. 2 has also given birth to their second child on 04.05.2023.

¶6In this context, wherein, it is clearly evident that the relationship between the petitioner No. 1 and petitioner No. 2 have been cemented in a union of marriage and also with the birth of their two children, therefore the allegations of sexual assault under the circumstances may not have been made out. The only legal hurdle at the relevant point of time was that the petitioner No. 2 was below the age of 18 years, however as submitted, the petitioner No. 2 was actually 17 years and 4 months at that point of time and as such, is mentally sound and capable to decide on her own as

far as her relationship with the petitioner No. 1 or for that matter as far as her future is concerned.

¶7In this background, the learned counsel has submitted that the respondent No. 2 who is the father of the petitioner No. 2 also being reconciled to the fact that the two are now husband and wife and that the family has just begun, therefore it would be futile and indeed, would create only disharmony and difficulty for the young family to be under the spectre of a criminal proceedings hanging over the head of the petitioner No. 1. It is therefore prayed that this petition may be allowed and the proceedings before the Court of the learned Special Judge (POCSO), Shillong being Spl. POCSO Case No. 28 of 2020 be set aside and quashed.

¶8The learned counsel for the respondent No. 2 has also endorsed the submission made by the learned counsel for the petitioners and has submitted that the family members of the petitioner No. 2 has no objection to the union between the petitioner No. 1 and petitioner No. 2 and in the light of the changed circumstances and situation as it is at present, the FIR may be allowed to be withdrawn or may be set aside and the resultant criminal proceedings be quashed.

¶9The learned Addl. PP has also not made any strong objection to the prayer of the petitioners, in view of the facts and circumstances and also on the strength of the submission made by the learned counsel for the

petitioners.

¶10This Court having carefully considered the submission made, the facts as related may not be repeated. What is observed is that this is one of such cases where teen age relationship and love affair and eventually, marriage between two young persons have more or less come in the way of the law of the land, particularly the provisions of the POCSO Act where any act of sexual intercourse or otherwise, with a minor below the age of 18 years is considered sexual assault. There is no provision under the POCSO Act which gives concession, if an element of consent is present in the relationship.

¶11Be that as it may, Courts would generally be pragmatic to the situation, and if the case so indicated reveal that there is an element of consent by the alleged victim to the relationship, be it an intimate relationship of sexual intercourse, the strict provisions of the law may have to be given a lenient interpretation.

¶12Keeping in view, the power of the Court to exercise its inherent power under Section 482 Cr.P.C which, inter alia, gives power to the Court to interfere in a matter, rather in criminal proceedings when there is an element of ends of justice to be met, this Court, hereby reiterates its respectful agreement with a number of propositions advanced by other High Courts on the subject, particularly before the Hon'ble Madras High

Court in the case of Vijayalakshmi & Anr. v. State Rep. By. Inspector of Police, All Women Police Station, Erode: Crl. O.P No. 232 of 2021, para 12 & 18 which reads as follows: "12. As rightly recognized by the Learned Single Judge of this Court in Sabari's Case (cited supra), incidences where teenagers and young adults fall victim to offences under the POCSO Act being slapped against them without understanding the implication of the severity of the enactment is an issue that brings much concern to the conscience of this Court. A reading of the Statement of Objects and Reasons of the POCSO Act would show that the Act was brought into force to protect children from offences of sexual assault, sexual harassment and pornography, pursuant to Article 15 of the Constitution of India, 1950 and the Convention on the Rights of the Child. However, a large array of cases filed under the POCSO Act seems to be those arising on the basis of complaints registered by the families of adolescents and teenagers who are involved in romantic relationships with each other. The scheme of the Act clearly shows that it did not intend to bring within its scope or ambit, cases of the nature where adolescents or teenagers involved in romantic relationships are concerned.

¶18In the present case, the 2nd Petitioner who was in a relationship with the 2nd Respondent who is also in his early twenties, has clearly stated that she was the one who insisted that the 2nd Respondent take her away from her home and marry her, due to the pressure exerted by her parents. The 2nd Respondent, who was placed in a very precarious situation decided to concede to the demand of the 2nd Petitioner. Thereafter, they eloped from their respective homes, got married and consummated the marriage. Incidents of this nature keep occurring regularly even now in villages and towns and occasionally in cities. After the parents or family lodge a complaint, the police register FIRs for offences of kidnapping and various offences under the POCSO Act. Several criminal cases booked under the POCSO Act fall under this category. As a consequence of such a FIR being registered, invariably the boy gets arrested and thereafter, his

youthful life comes to a grinding halt. The provisions of the POCSO Act, as it stands today, will surely make the acts of the boy an offence due to its stringent nature. An adolescent boy caught in a situation like this will surely have no defense if the criminal case is taken to its logical end. Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act. An adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop, should essentially receive the support and guidance of their parents and the society at large. These incidents should never be perceived from an adult's point of view and such an understanding will in fact lead to lack of empathy. An adolescent boy who is sent to prison in a case of this nature will be persecuted throughout his life. It is high time that the legislature takes into consideration cases of this nature involving adolescents involved in relationships and swiftly bring in necessary amendments under the Act. The legislature has to keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act."

¶13Again, in the case of Ranjit Rajbanshi v. State of West Bengal & Ors: C.R.A. No. 458 of 2018, the Hon'ble High Court of Calcutta, at para 47, 48 & 49, has observed as under: "47. In the present case, the victim girl was admittedly 16 ½ years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as 'consent' as such, the expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a

union between two persons out of their own volition. In the latter case, the expression 'penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim.

¶48As such, it cannot be said that the accused was guilty of penetrative sexual assault, as such, since here the act of penetration, even if true, would have to be taken not as an unilateral act of the accused but a participatory moment of passion involving the participation of both the victim and the accused.

¶49Although the question of consent does not arise in case of a minor, in order to attract Section 376(1) of the IPC, it had to be established that the alleged offence was committed against the will of the victim. Read in conjunction, the provisions of Section 376 of the IPC and Section 3 of the POCSO Act ought to be construed on a similar footing and cannot incriminate the accused for a voluntary joint act of sexual union."

¶14In view of the above, this Court is convinced that the petitioners have made out a case for interference under Section 482 Cr.P.C and accordingly, the FIR dated 24.10.2018 as well as the consequent proceedings in Spl. POCSO Case No. 28 of 2020 are hereby set aside and quashed.

¶15The petitioner No. 1 is therefore relieved and discharged of all liabilities as far as the said case is concerned.

¶16As observed above, this petition is accordingly disposed of. No costs.

Judge Meghalaya

15.05.2023 "D. Nary, PS"

Serial No. 06 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG Crl.Petn. No. 25 of 2023 Date of Decision: 15.05.2023 Shri. Rahul Kumar Choudhury Vs. State of Meghalaya & Anr. & Anr. Coram: Hon'ble Mr. Justice W. Diengdoh, Judge Appearance: For the Petitioner/Appellant(s) : Mr. S. Pandit, Adv. For the Respondent(s) : Mr. S. Sengupta, Addl. PP. Mr. H. Abraham, GA. for R 1. Ms. M.L. Tlau, Adv. for R 2. i) Whether approved for reporting in Law journals etc.: ii) Whether approved for publication in press: