The power under section 482 should not be exercised for heinous and serious offences, especially those under special statutes like the POCSO Act. The consent of a minor prosecutrix is immaterial and cannot be used to quash proceedings. Rape is a non-compoundable offence and cannot be compromised. Even if the prosecutrix turns hostile, the accused can still be convicted based on scientific and circumstantial evidence. The stage of trial is crucial in considering quashment based on compromise.

ORDER/JUDGMENT – Shri M. Khan, Counsel for the applicant. Shri Purushottam Rai, Panel Lawyer for the respondent No. 1/State. Shri S. S. Sikarwar, Counsel for the complainant/respondent No. 2.

This petition under section 482 of Criminal Procedure Code has been filed for quashment of Crime No. 656/2017 registered at Police Station Bahodapur, District Gwalior for offence under section 376 of Indian Penal Code and section 3/4 of Protection of Children from Sexual Offences Act 2012 (in short “the POCSO Act’’) as well as Sessions Trial No. 221/2017 pending before the Court of Tenth Additional Sessions Judge, Gwalior.

2. It is submitted by the Counsel for the applicant that during pendency of Sessions Trial, the parties have resolved their dispute with the intervention of elderly members of the society and the applicant has married the respondent No. 2 and thus, now there is no dispute between them and they want to live their life peacefully. As the applicant has married the respondent No. 2, therefore, the respondent No. 2 does not want to proceed further with the case and accordingly, both the parties have amicably compromised the matter. It is further submitted that this Court has extra-ordinary jurisdiction to quash the proceedings on the basis of compromise. The counsel for the applicant has relied upon the judgments passed by the Supreme Court in the case of Parbatbhai Aahir vs. State of Gujarat, reported in  (2017) 9 SCC 641, Gian Singh vs. State of Punjab reported in (2012) 10 SCC 303 and Narinder Singh and ors. vs. State of Punjab and anr. reported in (2014) 6 SCC 466.

3. It is submitted by the Counsel for the applicant that the respondent No. 2 had lodged a report 5-10-2017 on the allegations that she is aged about 17 years and about a year back, she had gone to her sister’s house. The applicant, who is nephew of her sister, used to visit the house. Thereafter, she came back to her parents’ home. The applicant continued to visit her parent’s home and started convincing her that he would marry her. About six months back, physical relations were developed on the promise of marriage. Thereafter, the applicant continued to have physical relations with her on the promise of marriage. For the last time, he had done wrong work with her on 3-10-2017 and on the said day when she insisted to marry, then he refused to do so. Thereafter, she informed this incident to her sister Chandni and grand-mother Mustari Devi. Accordingly, the FIR was lodged on 5-10-2017.

4. It is submitted by the Counsel for the applicant that the police, after completion of investigation, filed the charge-sheet and the applicant is facing trial for offence under section 376 of Indian Penal Code and under section 3/4 of POCSO Act, 2012. It is further submitted that during pendency of trial, due to intervention of elderly members of society, both the parties have entered into compromise and accordingly, the applicant has married the respondent No. 2 on 13-4-2019. Nikahanama has also been annexed with the petition. It is submitted that since both the parties are residing together peacefully, therefore, the prosecution of the applicant may be quashed on the ground of compromise.

5. Apart from the above judgments, the counsel for the applicant has also relied upon the order dated 10-4-2019 passed by a Co-ordinate Bench of this Court in the case of Pankaj Parmar and others vs. State of M.P. in MCRC No. 6904/2019 (Gwalior Bench) and submitted that in the said case the offence under section 363, 376, 120-B of Indian Penal Code and under section 5/6 of the POCSO Act was registered, and the Coordinate Bench of this Court after considering the compromise has quashed the proceedings.

6. Per contra, it is submitted by the Counsel for the State that the order passed by the Coordinate Bench of this Court passed in the case of Pankaj Parmar (supra) is per incuriam and it has not taken note of the judgments passed by the Supreme Court in the case of State of M.P. vs. Madanlal,