Meghalaya High Court | While quashing the FIR and the resultant criminal proceedings under POCSO Act, 2012, W. Diengdoh, J., held that ‘Sexual Assault’ under POCSO Act, 2012 cannot be attributed to an act where there is mutual love and affection between young boyfriend and girlfriend.
In the instant matter, the mother of a minor girl filled a FIR on 18-12-2020, complaining that her minor daughter was sexually assaulted by the accused. The mother alleged that her minor daughter, who was found absent from her room by the teacher at the school where she was studying and who had accordingly reported the matter to her, narrated that she was sexually assaulted by the accused on two occasions i.e. on 11-12-2020 and 16-12-2020. The accused was arrested by the police under S. 5(1)/6 of the POCSO Act and he got bail after he was in custody for about 10 months.
It is evident from the materials on record that the minor daughter of the mother was having an affair with the accused. The instant petition was filed by the accused (petitioner 1) and the minor girl’s mother (petitioner 2) on mutual understanding for quashment of FIR.
The counsel for the petitioners contended that the minor girl in her statement under S. 161 CrPC as well as S. 164 CrPC admitted that the accused was her boyfriend and her relationship with him was consensual and out of her own free will. The counsel for the petitioners also contended that the fact that both the accused and mother of minor girl has jointly and on mutual understanding filed the instant petition before the Court reflected the bonafide of the petitioners.
The counsel for the petitioners further contended that “this is a case where two teenagers are involved in a romantic relationship and being unaware of the legal restrictions, had indulged in a physical relationship out of their own free will and consent” and therefore this no case of sexual assault can be made under the provisions of the POCSO Act.
The counsel for the petitioners also submitted that the instant matter does not involve extreme depravity, perversity or cruelty and since there was no ill-motive or mens rea on his part, he may not be penalized for the same.
Discussing the effect of rape or sexual assault on victim and the need for stringent provisions under POCSO Act, the Court observed that “in a case where there is mutual love and affection between a child and a person which might even lead to a physical relationship, though the consent of the child under the law is immaterial as far as prosecution for an alleged offence of sexual assault is concerned”.
The Court also observed that “…in a case of a boyfriend and girlfriend particularly, if both of them are still very young, the term ‘sexual assault’ as could be understood under the POCSO Act cannot be attributed to an act where, there is, as pointed above, mutual love and affection between them.”
The Court noted the observation in Ranjit Rajbanshi v. State of W.B., 2021 SCC OnLine Cal 2470 and Vijayalakshmi v. State, Crl. O.P. No. 232 of 2021, order dated 27.01.2021, where it was held that
“There can be no second thought as to the seriousness of offences under the POCSO Act and the object it seeks to achieve. However, it is also imperative for this Court to draw the thin line that demarcates the nature of acts that should not be made to fall within the scope of the Act, for such is the severity of the sentences provided under the Act. Justifiably so, that if acted upon hastily or irresponsibly, it could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous. What came to be a law to protect and render justice to victims and survivors of child abuse, can, become a tool in the hands of certain sections of the society to abuse the process of law.”
In the light of facts of the case, argument advanced, authorities cited and in the interest of Justice, the Court quashed the FIR and criminal proceedings under POCSO Act and absolve the accused from any liability in the aforementioned criminal case.
[Silvestar Khonglah v. State of Meghalaya, 2022 SCC OnLine Megh 575, decided on 27.10.2022]
Advocates who appeared in this case:
Mr K. Ch. Gautam, Counsel for the Petitioners;
Mr S. Sengupta and Mr. H. Kharmih (Addl. PP), Counsel for the Respondent.
*Ritu Singh, Editorial Assistant has put this report together.