Back
2022 Supreme(Megh) 53
HIGH COURT OF MEGHALAYA AT SHILLONG
W. Diengdoh, J.
Adelbert Marbaniang & Anr. - Appellants
Versus
State of Meghalaya & Ors. - Respondents
Crl. Petn. No. 31 of 2022
Decided On : 16-08-2022
Important Points
Consensual nature of the relationship and the impact on the family and societal balance influenced the court's decision.
Subject
Criminal Law - Quashing of FIR
Act Referred
INDIEAN PENAL CODE : S.376, S.376(1)
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT : S.3, S.3(a), S.5(j)(ii), S.6
Headnote
POCSO - Quashing of FIR - Section 5(j)(ii)/6 of the POCSO Act, 2012 - [Section 5(j)(ii), Section 6]
Fact of the Case:
The case involved a petition to set aside and quash the FIR registered under Section 5(j)(ii)/6 of the POCSO Act, 2012, where the petitioner No. 1 was accused of sexual assault against the petitioner No. 2, who was initially reported as a minor.
Finding of the Court:
The court found that the relationship between the petitioner No. 1 and petitioner No. 2 was consensual and that the petitioner No. 2 had attained the age of majority during the proceedings. The court also considered the impact on the family and societal balance.
Issues: The issues revolved around the consensual nature of the relationship, the age of the petitioner No. 2, and the impact of continuing the criminal proceedings on the family.
Ratio Decidendi: The court's decision was influenced by the consensual nature of the relationship, the attainment of majority by the petitioner No. 2, and the societal impact of continuing the proceedings.
Final Decision: The court allowed the petition and set aside and quashed the FIR and the consequent proceedings in the POCSO case.
Ms. S. A. Pandit, Advocate, for the Petitioner; Mr. K. P. Bhattacharjee, GA, for the Respondent
JUDGMENT
1. This is an application filed under Section 482 CrPC with a prayer to set aside and quash the FIR registered as Laban P. S Case No 102(11) of 2021 under Section 5(j)(ii)/6 of the POCSO Act, 2012 and the consequent proceedings in Special POCSO Case No. 28 of 2022 pending before the learned Special Judge (POCSO) at Shillong.
2. Heard Ms. S. A. Pandit, learned counsel for the petitioners who has submitted that the petitioner No. 1 and the petitioner No. 2 have known each other since the month of January, 2021 and have developed mutual love for each other. They have also got into a physical relationship in course of their acquaintance.
3. In the month of April, 2021, the petitioner No 2 realised that she is pregnant and she accordingly informed the petitioner No 1. Thereafter, the petitioner No. 1 came and started living together with the petitioner No. 2 and since then they cohabited as husband and wife.
4. On 21.11.2021, the petitioner No. 2 felt some pregnancy contractions and was taken to the Ganesh Das Hospital, Shillong by the petitioner No. 1 for medical check-up. At the hospital, she has given her age as 17 years. On the basis of this information, the hospital staff accordingly informed the police. The petitioner No. 2 however, was subsequently admitted to Robert Hospital, Shillong where she gave birth to a baby girl on 23.11.2021.
5. In the meantime, the police on receipt of the said information from Ganesh Das Hospital, has treated the same as an FIR and caused registration of Laban P. S Case No. 102(11) of 2021 under Section 5(j)(ii)/6 of the POCSO Act, 2012.
6. On investigation being conducted, the Investigating Officer have eventually filed the charge sheet on 23.01.2022 implicating the petitioner No. 1 as the accused who is to face trial before the competent court, a regular case was registered as Special POCSO Case No. 28 of 2022 and the matter was taken up by the learned Special Judge (POCSO), Shillong.
7. The petitioner No. 1 was never arrested during the period of investigation as the petitioner No. 2 in her statement before the police have stated that she is in a relationship with the petitioner No. 1 and that they are now staying together after she gave birth to a baby girl on 23-11-2021 and if the petitioner No. 1 is arrested, then there will be no one to look after the family.
8. The petitioner No. 1 has been summoned to enter appearance before the Trial Court and the matter is at the stage of consideration of charges.
9. Being highly aggrieved by the proceedings initiated against the petitioner No. 1 before the court of the learned Special Judge (POCSO), Shillong, the petitioners as stated above have approached this Court with a prayer to set aside the FIR and the related POCSO case wherein the petitioner No. 1 has been named as the accused.
10. Heard Ms. S. A. Pandit, learned counsel for the petitioners who has submitted that admittedly the petitioner No. 2 was about 17 years of age when she cohabitated with the petitioner No. 1 and at the time when she gave birth to her child she was also above 17 years but less than 18 years of age. However, the fact that the relationship between the alleged victim and the accused has been established to be that of husband and wife, the sexual relationship between the two is one of consensual and not forced and in fact, cannot be considered to be a case of sexual assault.
11. The fact that the petitioner No. 2 has by now attained the age of majority on 25-05-2022 and, as such, can be considered to be legally living together with petitioner No. 1 as husband and wife is also one of the contentions raised by the learned counsel for the petitioners.
12. The union between the petitioners herein as husband and wife have also been blessed by the family members of both sides, therefore, continuation of the said proceedings would not be for ends of justice. It is prayed that this petition would be allowed and that the related FIR and criminal case against the petitioner No. 1 be se
