Cr. MMO No. : 813 of 2025 v. State of Himachal Pradesh & Anr.

FIR No.30 of 2024, dated 08.08.2024, registered, under Sections 77, 351 (1) of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as the BNS), Section 12 of Protection of Children from Sexual Offences Act 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 (hereinafter referred to as the POCSO Act) and Section 67(A) of the Information Technology Act (hereinafter referred to as the IT Act), with Women Police Station Dharamshala, District Kangra, as well as, the proceedings resultant thereto, pending before the Court of learned Additional Sessions Judge, Fast Track Special Court (POCSO/Rape), Kangra at Dharamshala (hereinafter referred to as the trial Court), by way of Sessions Trial No.87 of 2024, titled as State of H.P. versus Aradhya etc.

2. According to the petitioners, the above-stated FIR has been registered against the petitioners with Police Station, Dharamshala, in which, the police has conducted the investigation and submitted the charge-sheet, before the learned trial Court.

3. It is the further case of the petitioners that during the pendency of the proceedings before the learned trial Court, the matter has been compromised between the petitioners and respondent No.2, with the intervention of the respectables of the society.

4. On the basis of the above facts, a prayer has been made that the FIR, in question, as well as, 3 proceedings resultant thereto, pending before the learned trial Court, may kindly be quashed, by allowing the petition.

5. Copy of the FIR, has also been annexed with the petition. A perusal of the FIR reveals that the child victim got lodged the FIR, disclosing therein that she is getting coaching at Dharamshala and she is residing in a PG with petitioner No.3. Petitioner No.3, allegedly recorded her video, while she was taking bath and thereafter she had shown the same to the child victim and started blackmailing her. When the child victim tried to snatch the mobile from her, in order to delete the video, she has disclosed that she had kept the same in another phone also. She has further prayed to the police that the said video may kindly be got deleted permanently, so that she can live her life, without tension. According to her, due to the fear of video getting viral, she has tried to commit suicide, but, she has been saved by her family members.

6. On the basis of the above facts, she has prayed that action be taken against the accused persons. 4

7. On the basis of above facts, the police registered the aforesaid FIR and the criminal machinery swung into motion.

8. The relief of quashing has been sought on the basis of the compromise.

9. The FIR, in question, has been registered, under the special statute i.e. POCSO Act. The Legislature, in its wisdom, has enacted the special statute, i.e. POCSO Act, by keeping in view the rising number of cases, being committed against the children. Once, it has been held that the offences are against the State, then, it is the duty of the State to prosecute the offender, before the competent Court of law.

10. As observed earlier, the Legislature, in its wisdom, has enacted the POCSO Act, with an object to reduce the child abuse and protection of the children from sexual offences. The object of the Act has elaborately been discussed by the Hon’ble Supreme Court in Alakh Alok Srivastava versus Union of India and others, reported in 2018(7) SCALE 88. Relevant paras 10 to 12, 19 and 20 of the judgment, are reproduced, as under: 5 “10. The POCSO Act has been legislated keeping in view the fundamental concept under Article 15 of the Constitution that empowers the State to make special provisions for children and also Article 39(f) which provides that the State shall in particular direct its policy towards securing that the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. The Statement of Objects and Reasons of the Act indicate the focus for reduction of child abuse and protection of children from the offences of sexual assault, sexual harassment and pornography, etc. The relevant part of the Statement of Objects and Reasons of the POCSO Act is extracted below:- “3. The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. corroborated by the ‘Study on Child Abuse: India 2007’ conducted by the Ministry of Women and Child Development. Moreover, sexual offences against children are not adequately addressed by the existing laws. A large number of such offences are neither specifically provided for nor are they adequately penalized. The interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences Against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence. This

4. It is, therefore, proposed to enact a self contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the 6 judicial process incorporating child friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences.”

11. In this context, it is apposite to reproduce the long Preamble of the POCSO Act. It is as follows:- “An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. Whereas clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children; And whereas, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child; And whereas it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child; And whereas it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, and social intellectual development of the child; And whereas the State parties to the Convention on the Rights of the Child are required to undertake all appropriate and multilateral bilateral national, measures to prevent– 7 (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; (c)The exploitative use of children in pornographic performances and materials; And whereas sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed.”

12. In Eera through Dr. Manjula Krippendorf v. State (NCT of Delhi) and another, one of us (Dipak Misra, J), dwelling upon the purpose of the Statement of Objects and Reasons and the Preamble of the POCSO Act, observed:- “20. ... the very purpose of bringing a legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the preamble, it is manifest that it recognizes the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The statement of objects and reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and 8 dignity. There is also a mention which is quite significant that interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing childfriendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the POCSO Act”.

19. Speaking about the child, a three-Judge Bench in M.C.Mehta v. State of T.N. and others, (1996) 6 SCC 756, opined that:- “... “child is the father of man”. To enable fathering of a valiant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned.”

20. In Supreme Court Women Lawyers Association 11 (SCWLA) v. Union of India and another, (2016) 3 SCC 680, this Court has observed:- “In the case at hand, we are concerned with the rape committed on a girl child. As has been urged before us that such crimes are rampant for unfathomable reasons and it is the obligation of the law and law-makers to cultivate respect for the children and especially the girl children who are treated with such barbarity and savageness as indicated earlier. The learned Senior Counsel appearing for the petitioner has emphasised on the obtaining horrendous and repulsive situation.” Alice Miller, speakingabout child abuse has said:- a Swiss psychologist, 9 “Child abuse damages a person for life and that damage is in no way diminished by the ignorance of the perpetrator. It is only with the uncovering of the complete truth as it affects all those involved that a genuinely viable solution can be found to the dangers of child abuse.”

11. Similar view has again been taken by the Hon’ble Supreme Court in ‘State of Maharashtra and Another versus Dr. Maroti S/o Kashinath Pimpalkar’, reported in (2023) 4 SCC 298. Relevant paragraph 10 of the said judgment is reproduced, as under:- “10. Having made such a short survey on authorities on the exercise of power under Section 482 Cr.P.C. as above, we will now refer to the object and purposes of the POCSO Act. Article 15 of the Constitution, inter alia confers powers upon the State to make special provisions for children and Article 39 (f) provides not only that the State shall direct its policy towards securing that the children are given opportunities to develop in a healthy manner and in conditions of freedom and dignity but also to ensure that their childhood and youth are protected against exploitation and against moral and material abandonment. Recognising the constitutional obligation and keeping in view the fundamental concept under Article 15 of the Constitution and also realizing that sexual offences against children are not adequately addressed by the existing laws, POCSO Act was enacted. The provisions thereunder would reveal that it also aims to ensure that such offenders are not spared and should be properly booked.” 10

12. The Hon’ble Supreme Court in Criminal Appeal No.3403 of 2023, titled as ‘Ramji Lal Bairwa & Anr. Vs. State of Rajasthan & Ors.’, Neutral Citation No.2024 (INSC) 846, has elaborately discussed the provisions of POCSO Act and has held that the quashing of the proceedings, under Section 528 of the BNSS, in POCSO cases, on the basis of the settlement, is against the legislative intent, behind the enactment. Relevant paragraphs 10 to 12 and 31 of the said judgment are reproduced, as under:- “10. Before dealing with the contentions on behalf of the respondents and also the submissions of the learned amicus curiae and the counsel for the intervenor, we think it only appropriate to refer to certain relevant aspects of the POCSO Act. As introduction to the POCSO Act, what actually actuated the Parliament to enact ‘POCSO Act’ has been stated thus:- “Sexual offences against children are not adequately addressed by the existing laws. A large number of such offences are neither specifically provided with nor are they adequately penalised. Such offences against children need to be defined explicitly and countered through adequate penalties as an effective deterrence. This Act provides for protection of children from offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well-being of children.” 11

11. Contextually, it is worthy to refer to the statement of objects and reasons for the enactment of the POCSO Act. It reads as follows: - “STATEMENT OF OBJECTS AND REASONS Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Further, article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity.

2. The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials. This

3. The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. corroborated by the 'Study on Child Abuse: India 2007' conducted by the Ministry of Women and Child Development. Moreover, sexual offences against children are not adequately addressed by the existing laws. A large number of such offences are neither specifically provided for nor are they adequately penalised. The interests of the child, both as a victim as well as a 12 witness, need to be protected. It is felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence.

4. It is, therefore, proposed to enact a self contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process, incorporating child- friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences.

5. The Bill would contribute to enforcement of the right of all children to safety, security and protection from sexual abuse and exploitation.

6. The notes on clauses explain in detail the various provisions contained in the Bill.

7. The Bill seeks to achieve the above objectives.”

12. The objects and reasons for the enactment of the POCSO Act, as extracted above, would undoubtedly show that quashment of proceeding initiated under POCSO Act abruptly by invoking the power under Section 482, Cr. PC without permitting it to mature into a trial, except on extremely compelling reasons ex facie malafidely initiated or initiated solely to settle the score etc., would go against the very intention of the legislature behind the enactment. As noted earlier, it is the inadequacy of the existing laws to address certain issues relating sexual 13 offences against the children that made the legislature to come up with the aforesaid legislation with a view to protect and respect the privacy and confidentiality of children and to ensure their physical, emotional, intellectual and social development. The POCSO Act also addressed the lack of provisions defining various offences against the children and also adequate penal provisions therefor. A careful scanning of the various provisions under the POCSO Act would reveal that with a view to achieve the aforesaid objects and purposes various offences against the children are specifically defined and provisions for adequate penalisation are also inserted in the Act. Obviously, rubbing the breast of a child would constitute an offence of ‘sexual assault’ under Section 7 of POCSO Act, punishable with imprisonment of either description for a term which shall not be less than three years and may extend to five years and also fine. They would reveal that the commission of such offences against the children should be viewed as heinous and serious. Needless to say, that commission of such offences cannot be taken lightly as offences of private nature and in fact, such offences are bound to be taken as offences against the society. In the decision in Attorney General for India v. Satish and Anr. at paragraph 38, this Court held thus:- “The act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialised or held insignificant or peripheral so as to exclude such act from the purview of “sexual assault” under Section 7. As held by this Court in Balram Kumawat v. Union of India, the law would have to be interpreted having regard to the subject matter of the offence and to the object of the law it seeks to achieve. The purpose of the law cannot be to 14 allow the offender to sneak out of the meshes of law.”

31. In view of the very object and purpose of enacting the POCSO Act, we find no reason to disagree with the conclusions in paragraph 12 extracted above in the given case. It is more so, when the extracted portion from the complaint that was annexed to the FIR and extracted hereinbefore would reveal that the accused was making pressure on him not to lodge any report. Despite giving such statement in the complaint, within a couple of weeks, the accused managed to compromise the case with the 4th respondent and his wife.” (self-emphasis supplied)

13. Being guided by the above decisions of the Hon’ble Supreme Court, this Court is of the view that the present petition cannot be accepted, mainly on the following ground:- i. The quashing is also against the legislative intent, since, the offence is against the society and if such type of cases are quashed, on the basis of the grounds, as taken in the petition, it would encourage the other accused, who had committed such offence, to adopt the extra constitutional means to settle the matter i.e. influencing the witness by fiduciary relationship, using the money power or threatening the victim/complainant and to settle the matter in the name of honour of the family. 15 ii. If, the said prayer is allowed, then, it would amount to letting the accused persons go without legal punishment, in case, the prosecution is able to prove the case, beyond reasonable doubt, against them.

14. In view of the discussions, made hereinabove, the present petition is liable to be dismissed and is accordingly dismissed. Pending applications, if any, shall also stand disposed of accordingly. September 23, 2025 ( ps ) ( Virender Singh ) Judge