No form of mediation permissible in POCSO cases; Delhi High Court denies relief to father in POCSO case due to delay, child’s best interests

Delhi High Court

Delhi High Court: A case was filed by the petitioner seeking to challenge the dismissal of their complaint under the Protection of Children from Sexual Offences (POCSO) Act, wherein the Special Court had erred in allowing the withdrawal of the complaint and subsequently mediating between the petitioner and respondent 3, despite the main accused, respondent 2, not being party to the settlement being unjustifiable and alleging procedural irregularities in the court’s proceedings. Swarana Kanta Sharma, J., held that the petitioner was not entitled to the relief sought in the writ petition, citing reasons such as delay, lack of sufficient grounds, and the best interests of the children.

The petitioner (husband), who is married to respondent 3 (wife), alleges that their children, a 9-year-old daughter (X) and a 6-year-old son (Y), were subjected to sexual assault by respondent 2, who is the brother of respondent 3 and petitioner’s brother-in-law. The incident allegedly occurred in 2013-14. The petitioner claimed that in September 2013, he caught respondent 2 inappropriately touching his children, leading him to file a complaint with the local police station. However, despite lodging the complaint, no action was taken by the authorities. Furthermore, the petitioner’s wife left the matrimonial home shortly afterward and initiated legal proceedings against the petitioner, including proceedings for custody of the children, in the second week of October 2013. She was granted visitation rights during this time. In January 2014, during a visitation period granted to the wife, the children informed the petitioner that respondent 2 had again inappropriately touched them. Subsequently, on 15-01-2014, the petitioner filed another complaint with the police, alleging the offence on his children by respondent 2.

The petitioner asserted that despite his efforts to seek justice through legal channels, the authorities failed to take appropriate action. Consequently, he filed a complaint under Section 33 of the POCSO Act against respondent 2, seeking redress for the heinous offences committed against his children. The Special Court directed the police to record statements of the children under Section 24 of the POCSO Act, which were duly recorded, and the children supported their case as alleged in the complaint. The children also testified before the Special Court about the alleged incidents. Subsequently, the petitioner’s wife, who is the sister of respondent no. 2, approached the petitioner to settle the disputes amicably. They agreed to settle the matter through mediation, and a Settlement Agreement was reached on 27-08-2014. According to the agreement, the petitioner would withdraw the complaint filed under the POCSO Act in exchange for custody of the children. However, the petitioner now alleged that his wife, along with respondent 2, tricked him into withdrawing the complaint. As a result, the petitioner filed a writ petition before the court, seeking redress for the alleged non-compliance with the settlement agreement and the miscarriage of justice concerning the assault on his children.

Counsel for the petitioner argued that the Special Court lacked the authority to dismiss the complaint filed under the Protection of Children from Sexual Offences (POCSO) Act after taking cognizance. He contended that the Court erred in allowing the withdrawal of the complaint and subsequently referred the case for mediation between the petitioner and respondent 3, despite the brother of the wife i.e, brother-in-law of petitioner (respondent 2) being the main accused not party to the settlement. It was emphasized that the court’s decision to dismiss the complaint based on a compromise between the petitioner and respondent no. 3 was unjustifiable, especially considering that the minor children had already testified to respondent no. 2’s misconduct. Furthermore, it was argued that the Special Court failed to adhere to the procedural requirements outlined in the POCSO Act, and respondent no. 3 violated the settlement conditions by not granting divorce to the petitioner. The petitioner’s counsel asserted that the withdrawal of the complaint was an abuse of legal process.

In contrast, the counter affidavit filed on behalf of respondent 3 argued that the petitioner’s writ petition was an abuse of legal process driven by ulterior motives. They contended that there was no provision in the POCSO Act or any relevant law to revive the prosecution after the complaint’s withdrawal. Additionally, they criticized the petitioner for filing the petition nearly ten years after the incident, without providing adequate justification for the delay. The respondent’s counsel alleged that the initial complaint under the POCSO Act was frivolous and falsely implicated respondent 2. He accused the petitioner of concealing relevant facts, such as the court’s order for interim maintenance under the Protection of Women from Domestic Violence Act, and the fact that the children had been under respondent 3’s care since 2018 without support from the petitioner. The respondent’s counsel argued that the petitioner’s actions were retaliatory, prompted by a separate complaint filed by respondent 3 under the PWDV Act. They urged the court to dismiss the petitioner’s frivolous petition.

On the aspect of whether mediation can be preferred in cases registered under the POCSO Act or cases of sexual assault, the Court noted that the offences under POCSO Act, which are non-compoundable in nature and are even rarely quashed by the Constitutional Courts, cannot be referred to mediation by the Courts and cannot be settled or compromised through mediated agreements, nor should they be subject to resolution through monetary payments or similar arrangements. Allowing such serious and grave offences to be settled through mediated agreements, especially since such settlement is acceded to by the parent or guardian of the minor victim and not the victim himself or herself who is a minor, would amount to trivialising the gravity of the offence and undermining the rights of minor victims of sexual abuse to seek appropriate legal recourse and justice.

The Court further noted that this was not a simple matrimonial dispute between husband and wife but involved allegations of sexual abuse of minors. Despite this, the court proceeded with mediation. Several procedural errors occurred during the handling of the case. Firstly, the police did not register an FIR despite clear allegations of sexual assault falling within the purview of the POCSO Act, and instead, the court called for a status report from the investigating officer. No statements under Section 161 or 164 of the Cr.P.C. were recorded from the minor victims, and the police gave a finding that no case under the POCSO Act was made out, presuming the complaint to be motivated. The learned Special Court entertained the complaint without taking cognizance of it, and later, upon realizing its error, recorded the evidence of the minor victims. However, despite the serious nature of the allegations and the evidence presented by the minor victims, the court still referred the matter to mediation. Eventually, the complainant was allowed to withdraw the complaint based on a mediated settlement agreement, resulting in a gross miscarriage of justice, especially considering the tender age of the minor victims who sought protection from the court.

The Court observed that there was a significant delay of more than eight years between the passing of the impugned order and the filing of the writ petition. Despite the absence of a specific limitation period for filing a writ petition, the Court emphasized the need for the petitioner to provide a satisfactory explanation for such an unreasonable delay. The petitioner failed to offer any compelling reasons for the lengthy delay, raising concerns about the timeliness and diligence in seeking a remedy. The Court scrutinized the conduct of both parties, particularly their handling of the settlement agreement and custody arrangements. It noted that the petitioner and respondent 3 entered a settlement agreement in 2014, which formed the basis of the impugned order. However, subsequent events, such as the petitioner’s failure to adhere to the terms of the agreement and the initiation of legal proceedings by respondent 3, raised questions about the parties’ commitment to resolving their disputes amicably.

The Court laid emphasis on prioritizing the welfare and best interests of the children involved in the dispute. The Court expressed concerns about the potential harm and distress caused to the children by reopening past wounds and subjecting them to further legal proceedings. It highlighted the importance of providing a stable and nurturing environment for the children’s growth and development, emphasizing the need to shield them from the adversarial actions of their parents.

Thus, the Court concluded that the petitioner was not entitled to the relief sought in the writ petition. The Court cited reasons such as the petitioner’s failure to provide a satisfactory explanation for the delay, lack of sufficient legal grounds, and the paramount importance of safeguarding the welfare of the children. By denying the requested relief, the Court aimed to uphold the principles of justice, fairness, and child protection in its decision-making process.

[Rajeev Dagar v. State, 2024 SCC OnLine Del 1648, decided on 07-03-2024]

Advocates who appeared in this case :

Mr. Rajat Wadhwa, Ms. Dhreti Bhatia, Mr. Gurpreet Singh, Mr. Nikhil Mehta and Mr. Himanshu Nailwal, Advocates for petitioner

Ms. Rupali Bandhopadya, ASC for the State. Mr. Gitesh Aneja and Mr. Lakshay Kumar, Advocates for R2 & 3

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