IMPORTANT POINT
The main legal point established is the application of the POCSO Act to protect children from sexual exploitation, emphasizing the offense of penetrative sexual assault and the lack of capacity to give consent due to the age of the victim.

ORDER

1. This is an application under Section 482 Cr.P.C with a prayer to set aside and quash the criminal proceedings pending in the Court of the learned Special Judge (POCSO), East Khasi Hills, Shillong being Special POCSO Case No. 70 of 2020 u/s 5(j)(ii)/6 POCSO Act, 2012.

2. Heard Mr. K.Ch. Gautam, learned counsel for the petitioners herein who has submitted that the petitioner No. 1 and petitioner No. 2 are husband and wife and in course of their relationship, the petitioner No. 2 got pregnant and accordingly, the petitioner No. 1 took her to Nazareth Hospital, Shillong for medical checkup. However, the hospital authorities on confirming that the petitioner No. 2 is pregnant and that her age was about 17 years at the relevant time had accordingly informed the police of the matter.

3. The police on receipt of the telephonic information from Nazareth Hospital, had lodged an FIR through Inspector P. Burman of Madanrting P.S, Shillong who had stated that on 12.05.2018 at about 11:40 PM, the petitioner No. 2, wife of petitioner No. 1 had gone to Nazareth Hospital for checkup and was found to be pregnant. Therefore, prayer for suo moto case was registered and investigation was made by the said informant. Accordingly, Madanrting P.S Case No. 37(5)2018 u/s 5(j)(ii)/6 POCSO Act, 2012 was registered.

4. On investigation being conducted, the statement of the victim/petitioner No. 2 and other witnesses was duly recorded u/s 161 as well as u/s 164 Cr.P.C respectively and on completion of the investigation, the charge sheet was filed finding a well-established prima facie case against the petitioner No. 1 and he was accordingly made to stand trial before the Court of the learned Special Judge (POCSO), Shillong. The case is at the stage of framing of charge.

5. Mr. Gautam has also submitted that the petitioner No. 1 and petitioner No. 2 are husband and wife as is evident from the statement of the petitioner No. 2 recorded u/s 161 as well as u/s 164 Cr.P.C where she has clearly stated that the petitioners are living together as husband and wife with the knowledge of the family members from both sides. The mother of petitioner No. 2 in her statement also recorded u/s 161 as well as u/s 164 Cr.P.C has confirmed the said fact and has also said that out of the cohabitation between the couple, a male child was born to them. Neither the petitioner No. 2 nor the family members wished to proceed with the case against the petitioner No. 1.

6. Mr. Gautam has further submitted that this is a case where the petitioners who hails from a rural background and who are oblivious to the provisions of law, particularly the Prevention of Children from Sexual Offences Act (POCSO) had willingly cohabited together as husband and wife as per the customary law of the land and it is, but natural, that a child be conceived out of such union. This is not a case where a heinous crime of rape has been committed and thereafter, a subsequent compromise has been arrived at between the parties, but as stated above is a consequence of a relationship between two young persons who are in love.

7. Though, the POCSO Act has been rightly enacted to safeguard children from sexual exploitation, but in the peculiar facts and circumstances of the case of the petitioners herein, the rigors of the said Act may not be applied to their case and the converse would only result in the breakdown of a happy family relationship and the possible consequence of the wife having to take care of a baby with no support, physically or financially from her husband who may be languishing in jail.

8. In support of his contention, the learned counsel for the petitioner has relied on the following cases cited below: -

(i) Ranjit Rajbanshi v. State of West Bengal & Ors: C.R.A. No. 458 of 2018, para 47, 48 & 49.

(ii) Vijayalakshmi & Anr. v. State Rep. By. Inspector of Police, All Women Police Station, Erode: Crl. O.P No. 232 of 2021 para 12 & 18.

9. Mr. Gautam has submitted that quashing of the proceedings will not