JUDGMENT: (per the Hon’ble, the Chief Justice)

The aforesaid petition is placed before us pursuant to the reference made by the learned Single Judge (Hon’ble B. Bhattacharjee, J) vide order dated 12th June, 2024, in view of his disagreement with the judgment and order dated 23rd March, 2022 passed by the coordinate Bench (Hon’ble W. Diengdoh, J) in Crl Petn No. 63 of 2021.

Although, the learned Single Judge has not framed the issue for reference, having perused the said order dated 12th June, 2024, the following issue is framed:

Whether a case under the POCSO Act, 2012, which is a Special Act, protecting children from sexual exploitation and sexual abuse, and considered as heinous crime, can be quashed with the consent of the accused and the victim, under Section 528 of BNSS, having regard to the fact, that the POCSO Act has an overriding effect on any other law and there being no specific exclusion, can any personal law or custom prevail over or override the provisions of the POCSO Act?

Brief facts giving rise to the filing of the aforesaid petition.

The petitioner No. 1, aged 22 years (accused) and the petitioner No. 2, aged 16 years (victim/prosecutrix) have filed the aforesaid petition jointly seeking quashing of the FIR dated 3rd May, 2019 filed by the respondent No. 2 (i.e., grandmother of petitioner No. 2) with the Diengpasoh Police Station, Shillong being P.S. Case No. 5 (05) of 2019, alleging offences punishable under Sections 5(j)(ii) and 6 of the POCSO Act, 2012. In the FIR, the respondent No. 2 has alleged that the petitioner No. 2 aged 16 years was sexually assaulted by the petitioner No. 1 aged 22 years, resulting in the petitioner No. 2 becoming pregnant. After investigation, the police filed charge-sheet as against the petitioner No. 1 and the case is presently pending before the learned Special Judge (POCSO), Shillong being Special (POCSO)Case No. 103 of 2019.

According to the petitioner Nos. 1 and 2, they were in a consensual relationship and from the said relationship they have a child and that they have been living together as husband and wife since 2018. It is also contended that the said relationship has been accepted by the family members of the petitioners. Accordingly, the petitioner Nos. 1 and 2 have filed the aforesaid petition seeking quashing of the FIR/proceeding with the consent of the petitioner No. 2 (victim) and the respondent No. 2 (original complainant, who is the grandmother of the petitioner No. 2).

It is in the aforesaid facts, that the learned Single Judge (B.Bhattacharjee, J), made the following observations, whilst making the aforesaid reference.

(i) that in the absence of any material to show when the parties got married, under which prevailing custom or law, it was not possible to consider what would be the obligation of the parties towards each other in the relationship;

(ii) that the object of the Prohibition of Child Marriage Act which aims to discourage and abolish the practice of Child Marriage and the provisions of the POCSO Act which protects children from sexual exploitation and sexual abuse, cannot be ignored or lost sight of; and

(iii) that the provisions of the POCSO Act shall have an overriding effect on any other law, and that unless and until there is a specific exclusion, no personal law or custom can prevail over or override the provisions of the POCSO Act.

The learned Single Judge having disagreed with the judgment and order dated 23rd March, 2022 passed by the coordinate Bench of this Court (Hon’ble Diengdoh, J) in Crl. Petn. No. 63 of 2021 (Shri Skhemborlang Suting and anr v. State of Meghalaya & anr), allowing a petition under Section 528 BNSS seeking quashing of the FIR/proceeding by consent of the accused and the victim (prosecutrix), has referred the aforesaid petition to the Division Bench of this Court for consideration.

Ms L. Khiangte, learned counsel for the petitioners submitted that there is no impediment in law to quash the FIR/proceeding, even if the case