IMPORTANT POINT
Serious offences under the POCSO Act cannot be settled; quashment based on settlement is impermissible due to public interest considerations.

ORDER :

(A. Badharudeen, J.)

This Criminal Miscellaneous Case has been filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS’ for short), by the defacto complainant in Crime No.1013/2018 of Kallambalam Police Station, Thiruvananthapuram, seeking the following reliefs :

(i) quash the charge sheet in S.C.No.1235/2018, marked as Annexure A2, based on the petitioner’s decision to not proceed with the prosecution.

(ii) stay the further proceedings in S.C.No.1235/2018 pending the disposal of this Criminal Miscellaneous Case.

(iii) Pass such other and further orders as this Hon’ble Court may deem fit and proper in the interest of justice.”

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor on admission. Perused the records.

3. Here the prosecution alleges commission of offences punishable under Section 341 and 354A as well as Sections 7, 8, 11(1), 12 and 18 of the Protection of Children from Sexual Offence Act, 2012 ('POCSO Act’ for short), by the accused. The prosecution allegation is that the accused with intention to subject the minor girl to sexual intercourse, an year before, while she was learning bicycle peddling through the public road, caught hold on her hand with sexual intent and thereby molested her. Again at 7.45 a.m on 21.07.2018, when the victim reached the place of occurrence near an auditorium, the accused wrongfully restrained her and commented that her breasts have become big (“”) and also attempted to caught hold on her with sexual intent.

4. While seeking the quashment sought for, the learned counsel for the petitioner argued that none of the ingredients to attract the offences is made out, prima facie, and therefore the quashment is liable to succeed. He also submitted that now the matter has been settled and the petitioner/defacto complainant filed Annexure A5 affidavit in this regard.

5. The learned Public Prosecutor strongly opposed the quashment and pointed out Annexure A4 order.

6. In this matter, earlier as per Annexure A4 order, this Court considered challenge against discharge plea raised by the accused before the trial court, which was dismissed by Annexure-A3 order dated 21.12.2020, after meticulously analysing the facts of the case and held as under:

“The petitioner is discharged of the offences punishable under Section 341 of the IPC and Sections 7 r/w 8 and 18 of the POCSO Act. The trial court shall frame a charge for the offences punishable under Section 354A(iv) of the IPC and Section 11(i) r/w 12 of the POCSO Act and try him in accordance with law.”

7. Thus this is a case wherein the discharge plea raised by the petitioner was dismissed by the trial court as per Annexure-A3 and this Court while reconsidering the plea of discharge, categorically found that offence under Section 354A(iv) of Cr.P.C as well as Section 11(i) read with 12 of the POCSO Act are made out and the accused is liable to be prosecuted for the same.

8. Now the defacto complainant seeks quashment of the proceedings on the ground of settlement on asserting that the case was registered while she was aged 15 years and the same is based on a misunderstanding of facts. The legal question poses for consideration is when cases under the POCSO are sought to be settled, whether any predominance is available to the defacto complainant/victim than the accused?

9. In the decision reported in [2024 INSC 846], Ramji Lal Bairwa & Anr. v. State of Rajasthan & Ors. the Apex Court considered a case where prosecution alleged commission of offences punishable under Sections 354A, 342, 509 and 504 of IPC and Sections 7 and 8 of the POCSO Act as well as Sections 3(1)(r), 3(1)(s), 3(1)(b) and 3(2)(vii) of the Schedule Cast and Schedule Tribe (Prevention of Atrocities) Act, 1989 ('SC/ST Act' for short), where a minor child victim was patted on her cheeks by the accused and he put his hand inside the bodice and rubbed her breast, where the High Court of Rajasthan quashed the proceedings despite the opposit