XXXX vs State Of Kerala

A. Badharudeen, J

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to quash Annexure-A Final Report and all further proceedings against the petitioner in S.C. No.286/2019 on the files of the Special Court for the trial of cases under the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short], Palakkad. The petitioner herein is the sole accused in the above case.

Heard the learned counsel for the petitioner, the learned Public Prosecutor, in detail. Perused the relevant materials available.

In this matter, the prosecution case is that, at about 10.15 hours on 05.06.2018, the accused, who is a married lady having a child and the neighbor of the victim, a minor boy aged 17 years, pretended love towards him and taken him to Ashraya International Hotel, Bangalore and she forced the minor victim to have sexual intercourse with her. Thereafter, at about 05.00 am on 07.06.2018, the accused abandoned her 3 year old son at Chittinlanchery. On this premise, the prosecution alleges commission of offences punishable under Section 317 of Indian Penal Code, under Sections 3(c) read with 4 of the POCSO Act (wrongly stated as 3(a) read with 4 of the POCSO Act in the Final Report) and under Section 75 of the Juvenile Justice (Care and Protection) of Children Act, 2015 [hereinafter referred as ‘JJ Act’ for short] by the accused.

It is submitted by the learned counsel for the petitioner that, initially, crime was registered under Section 57 of the Kerala Police Act and later, on investigation, the above said offences were incorporated and Final Report also filed for the same. According to the learned counsel for the petitioner, as per the 164 statement given by the victim before the Magistrate, nothing stated to show that the petitioner committed any of the offences as alleged. It is submitted further that, now, the dispute in between the petitioner and the victim has been settled and the victim, who now attained majority has filed affidavit stating that he has no grievance in quashing the present proceedings. Therefore, the learned counsel for the petitioner pressed for quashment of the proceedings either on merits or on the ground of settlement.

Zealously opposing quashment sought for on merits as well as settlement, it is submitted by the learned Public Prosecutor that, in this case, even though as per the Final Report the offence alleged is, one under Section 3(a) read with 4 of the POCSO Act, in fact, the same is offence under Section 3(c) read with 4 of the POCSO Act. It is submitted further that, as per Section 3(c) of the POCSO Act, a person is said to commit “penetrative sexual assault” if, he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person. Going by the FIS as well as the additional statement given by the victim, the above said overt acts at the instance of the accused are made out, prima facie. It is submitted further that, in the 164 statement given by the victim also, sexual intercourse between the minor and the petitioner has been stated. Therefore, the contention raised by the learned counsel for the petitioner to the effect that, nothing disclosed in the 164 statement as against the petitioner is incorrect. Therefore, quashment prayer is liable to fail.

Adverting to the rival arguments, I have perused the statements of the victim and the same would show that, the accused, who is a married lady having a child and none other than the neighbor of the victim, a minor boy aged 17 years, pretended love towards him and taken him to Ashraya International Hotel, Bangalore and she forced the minor victim to have sexual intercourse with her and thereafter, at about 05.00 am on 07.06.2018, the accused abandoned her 3 year old son at Chittinlanchery. In the 164 statement given by the victim also, he disclosed that there was sexual intercourse after their arrival at Bangalore. Thus, prima facie, the offences under Section 317 of Indian Penal Code, under Sections 3(c) read with 4 of the POCSO Act as well as under Section 75 of the JJ Act alleged by the prosecution would attract in this matter.

Coming to the contention that, the matter has been settled and therefore, quashment is liable to be allowed, the same also could not be considered, since quashment of serious offences under the POCSO Act is not legally permissible, merely acting on the affidavit of the victim, where the prosecution has the right to corroborate the version of the victim by using 164 statement as provided under Section 157 of the Evidence Act. In such view of the matter, quashment sought for would fail not only on the ground of merits but also on the ground of settlement as well.

In the result, this Crl.M.C. stands dismissed with direction to the Special Court to expedite the trial and dispose of the case, at any rate, within a period of six months from the date of receipt of copy of this order, since this is a case of the year 2018.

Registry is directed to forward a copy of this order to the Special Court, within three days, for information and further steps.