Consensual act resulting in childbirth, forgiveness and intent to solemnize marriage, absence of retributive theory of punishment

JUDGMENT

Dinesh Mehta, J. - (In Camera Proceedings)

1. It is rather an unusual case where the FIR (being FIR No. 260/2022) under provisions of Section 376 of Indian Penal Code and Sections 3 and 4 of the Protection of Children from Sexual Offences Act (hereinafter referred to as 'POCSO Act') has been registered by the Station House Officer, Devnagar, Jodhpur City West pursuant to the statement of a minor girl - respondent No. 2, when she delivered a baby boy in a Government Hospital.

2. The case involves and deals with the personal relationship of a minor girl - respondent No. 2 who shall be referred to as 'D'. The registry is directed to redact or withhold particulars of respondent No. 2 from all online record relating to this case.

3. Facts appertaining to the present case are that on the fateful day of 04.08.2022, when 'D' complained of severe stomachache and distress, her parents took her to Government Hospital and were shocked to learn that their daughter, still a minor and unmarried, was carrying matured pregnancy and was about to deliver.

4. As luck would have it, said 'D' gave birth to a baby boy though she herself was of tender age of 16 years (born on 06.04.2006). Coming to know of such fact, the Investigating Officer recorded her statement in which it was revealed that during currency of her love affair with the present petitioner, she voluntarily cohabited with the petitioner, due to which she got impregnated.

5. Such being the position, the Investigating Officer sprung into action and went on to register the aforementioned FIR against the petitioner under the provisions of Section 376 of the Indian Penal Code and Sections 3 and 4 of the POCSO Act.

6. Mr. Panwar, learned counsel for the petitioner submitted that the petitioner and the respondent No. 2 are having an affair and in innocence, rather lack of understanding of the consequences, they indulged in physical relationship, due to which respondent No. 2 became pregnant. Having highlighted that the act was consensual, he submitted that neither the prosecutrix nor her parents have any grievance or grudge against the petitioner.

7. While highlighting that the impugned FIR (No. 260) has been registered by the police officer at his own accord, learned counsel submitted that the parents of 'D' and even 'D' herself have entered into a compromise with the petitioner and approached this Court for seeking quashment of the FIR by invoking the Courts' powers under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code').

8. While pointing out that neither party wants the petitioner to be prosecuted/punished, learned counsel argued that continuation of the prosecution in the facts of the present case will serve no just purpose.

9. Considering the sensitivity of the issue and complexity of the problem, the petitioner, so also the prosecutrix - 'D' and their parents were asked to present themselves in the Court. Parents of both the boy and girl so also the petitioner and 'D' expressed their remorse and helplessness. The hapless parents of the girl expressed their concern about the situation that due to lack of maturity, or mistake, their minor and yet to be married daughter has delivered a baby boy.

10. They submitted that due to the society's pressure and stigma, they are not even in a position to keep their grandson with themselves and that innocent 2 months-old boy is housed in a nursery. They were emotional while stating that the innocent child is deprived of natural love, affection and feed from his mother, only because of the pendency of the impugned FIR.

11. Parents of petitioner so also 'D' who hail from different castes consented that as soon as the prosecutrix 'D' attains majority, they will solemnise her marriage with the petitioner.

12. The parents of both the girl and the boy beseeched that the subject FIR be quashed, because the prosecution for an unreflective, yet consensual act will be more detrimental to the rights and interests of 'D' and her