BY AD vs VINOD KUMAR.C

STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 XXXXXXXXXX XXXXXXXXXX BY ADVS. VINOD KUMAR.C C.N. PRABHAKARAN, SENIOR PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.04.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.1875 of 2022 -: 2 :- O R D E R The Petitioner herein is the sole accused in Crime No.636/2019 of Nemom Police Station, Thiruvananthapuram, which is now pending as S.C.No.350/2020 of the Fast Track Special Court (POCSO), Neyyattinkara. The offences alleged are under Sections 354 D, 451, 506(1) of the Indian Penal Code, and also, under Sections 11(i), read with Section 12 of the Protection of Children from Sexual Offences Act (for short, 'POCSO Act').

2. The prosecution case is that the petitioner used to follow the alleged victim girl, aged 15 years and he gave her a mobile phone - hiding it in a book having the size of a dictionary - and subsequently he trespassed into the alleged victim's houseyard at around 3:00 a.m., wanted the victim to open the grill and thereafter entered into her house in the night. He caught hold of her hand, with a demand that, on attaining 18 years of age, she should go with him, or else he will destroy the workshop of the Crl.M.C.No.1875 of 2022 -: 3 :- victim's father, thus committing the aforementioned offences.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.

4. Learned counsel for the petitioner submits that the subject matter of this case has been settled amicably by and between the petitioner and the defacto complainant (2nd respondent), as evidenced by Annexures-4 and 5. Annexure-4 is the affidavit sworn to by the victim and Annexure-5 is the one by the victim's mother. On a perusal of the statement of the defacto complainant/mother, it is clear that the matter has been amicably settled and that the defaco complainant is not any more interested to proceed with the case. On such premise, learned counsel for the petitioner seeks the M.C to be allowed, quashing all further proceedings in the crime. Crl.M.C.No.1875 of 2022 -: 4 :-

5. This application was opposed by the learned Public Prosecutor by pointing out that a minor girl, aged 15 years was followed by the petitioner and that the petitioner trespassed into the house of the said girl at 3:00 a.m and threatened her with consequences, unless she agreed to go along with him upon attaining 18 years of age. According to the learned Public Prosecutor, this case, involving offence under the POCOSO Act, is not a fit case for being quashed under Section 482 of the Code of Criminal Procedure.

6. Having heard the learned counsel appearing for the respective parties, this Court finds merit in the instant Crl.M.C. Apart from the offences under Section 354 D, 451 and 506(1) of the Penal Code, the offence canvassed under the POCSO Act is under Section 11(i), read with Section 12. Section 11 deals with sexual harassment. It is seen that the offence charged is under Section 11(i), read with Section 12. Section 11(i) is a case where the accused, with a sexual intent, utters any word or makes any sound or makes Crl.M.C.No.1875 of 2022 -: 5 :- any gesture or exhibits any object or part of the body with the intention that such word or sound shall be heard, or such gesture or object or part of the body shall be seen by the child. Going by the facts of the case, it appears that Section 11(i) [wrongly stated as Section 11(1)] is not applicable. Instead, the offence which may be attracted is the one under Section 11(iv), which speaks of repeated or constant following or watching or contacting a child either directly or through electronic, digital or any other means, with a sexual intent. The offence under Section 11 is made punishable as per Section 12 for imprisonment, which may extend to a period of three years and fine. The above matters are narrated only to show that the offence alleged under the POCSO Act is not of a grievous nature in the given facts. Needless to say that, the other offences under the Penal Code, namely under Section 354 D, 451 and 506(1) are also not grievous or heinous offences, which are outside the purview of a composition based on settlement. Crl.M.C.No.1875 of 2022 -: 6 :-

7. Inasmuch as the matter has been settled by and between the parties as evidenced by Annexures-4 and 5 affidavits coupled with the statement of the defacto complainant, this Court is of the opinion that further proceedings in this matter is neither conducive, nor going to fetch any result in favour of the prosecution. The offences canvassed cannot be characterised as heinous offences, so as to take it outside the scope of a quashment on the strength of a settlement between the parties.

8. The general proposition that an offence under the POCSO Act cannot be quashed on the strength of a settlement, cannot apply to the instant facts. It is not the canvasing of an offence under the POCSO Act that matters, in the context of quashment. It is the nature, severity and gravity of the offense under the POCSO Act that matters. By that yardstick, this Court is of the definite opinion that the instant facts will not take itself outside the scope of a quashment. Crl.M.C.No.1875 of 2022 -: 7 :-

9. In the light of the above referred facts, this Court is of the opinion that the necessary parameters, as culled out in Narinder Singh and Others v. State of Punjab [(2014) 6 SCC 466], Madan Mohan Abbot v. State of Punjab [(2008) 4 SCC 582] and Gian Singh v. State of Punjab and another [(2012) 10 SCC 303], are fully satisfied. This court is convinced that further proceedings against the petitioner will be a futile exercise, inasmuch as the disputes have already been settled. There is little possibility of any conviction in the crime. Dehors the settlement arrived at by and between the parties, if they are compelled to face the criminal proceedings, the same, in the estimation of this Court, will amount to abuse of process of Court. The quashment sought for would secure the ends of justice. Learned counsel for the defacto complainant would also signify that the defacto complainant has no objection in quashing the above Sessions Case. Crl.M.C.No.1875 of 2022 -: 8 :-

9. In the circumstances, this Crl.M.C. is allowed Annexure-1 F.I.R, Annexure-2 Final Report, and all further proceedings in S.C.No.350/2020 before the Fast Track Special Court, Neyyattinkara, are hereby quashed. Sd/- C.JAYACHANDRAN, JUDGE Crl.M.C.No.1875 of 2022 -: 9 :- APPENDIX OF CRL.MC 1875/2022 PETITIONER ANNEXURES SEALED COVER 1 (ANNEXURE-1) THE TRUE COPY OF THE FIR IN CRIME NO.636/2019 OF NEMOM POLICE STATION, THIRUVANANTHAPURAM. SEALED COVER 2 (ANNEXURE-2) CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.636/2019 OF NEMOM POLICE STATION, THIRUVANANTHAPURAM SEALED COVER 3 (ANNEXURE-3) TRUE COPY OF THE ORDER DATED 16.07.2019 PASSED IN CRL.M.C.NO.4940/2019 ON THE FILEOF THIS HON'BLE COURT. SEALED COVER 4 (ANNEXURE-4) ORIGINAL OF THE AFFIDAVIT DATED 21.12.2021 EXECUTED BY THE DEFACTO COMPLAINANT/ALLEGED VICTIM SEALED COVER 5 (ANNEXURE-5) ORIGINAL OF THE AFFIDAVIT DATED 21.12.2021 EXECUTED BY THE MOTHER OF THE DEFACTO COMPLAINANT/ALLEGED VICTIM

STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 XXXXXXXXXX XXXXXXXXXX BY ADVS. VINOD KUMAR.C C.N. PRABHAKARAN, SENIOR PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.04.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.1875 of 2022 -: 2 :- O R D E R The Petitioner herein is the sole accused in Crime No.636/2019 of Nemom Police Station, Thiruvananthapuram, which is now pending as S.C.No.350/2020 of the Fast Track Special Court (POCSO), Neyyattinkara. The offences alleged are under Sections 354 D, 451, 506(1) of the Indian Penal Code, and also, under Sections 11(i), read with Section 12 of the Protection of Children from Sexual Offences Act (for short, 'POCSO Act').

2. The prosecution case is that the petitioner used to follow the alleged victim girl, aged 15 years and he gave her a mobile phone - hiding it in a book having the size of a dictionary - and subsequently he trespassed into the alleged victim's houseyard at around 3:00 a.m., wanted the victim to open the grill and thereafter entered into her house in the night. He caught hold of her hand, with a demand that, on attaining 18 years of age, she should go with him, or else he will destroy the workshop of the Crl.M.C.No.1875 of 2022 -: 3 :- victim's father, thus committing the aforementioned offences.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.

4. Learned counsel for the petitioner submits that the subject matter of this case has been settled amicably by and between the petitioner and the defacto complainant (2nd respondent), as evidenced by Annexures-4 and 5. Annexure-4 is the affidavit sworn to by the victim and Annexure-5 is the one by the victim's mother. On a perusal of the statement of the defacto complainant/mother, it is clear that the matter has been amicably settled and that the defaco complainant is not any more interested to proceed with the case. On such premise, learned counsel for the petitioner seeks the M.C to be allowed, quashing all further proceedings in the crime. Crl.M.C.No.1875 of 2022 -: 4 :-

5. This application was opposed by the learned Public Prosecutor by pointing out that a minor girl, aged 15 years was followed by the petitioner and that the petitioner trespassed into the house of the said girl at 3:00 a.m and threatened her with consequences, unless she agreed to go along with him upon attaining 18 years of age. According to the learned Public Prosecutor, this case, involving offence under the POCOSO Act, is not a fit case for being quashed under Section 482 of the Code of Criminal Procedure.

6. Having heard the learned counsel appearing for the respective parties, this Court finds merit in the instant Crl.M.C. Apart from the offences under Section 354 D, 451 and 506(1) of the Penal Code, the offence canvassed under the POCSO Act is under Section 11(i), read with Section 12. Section 11 deals with sexual harassment. It is seen that the offence charged is under Section 11(i), read with Section 12. Section 11(i) is a case where the accused, with a sexual intent, utters any word or makes any sound or makes Crl.M.C.No.1875 of 2022 -: 5 :- any gesture or exhibits any object or part of the body with the intention that such word or sound shall be heard, or such gesture or object or part of the body shall be seen by the child. Going by the facts of the case, it appears that Section 11(i) [wrongly stated as Section 11(1)] is not applicable. Instead, the offence which may be attracted is the one under Section 11(iv), which speaks of repeated or constant following or watching or contacting a child either directly or through electronic, digital or any other means, with a sexual intent. The offence under Section 11 is made punishable as per Section 12 for imprisonment, which may extend to a period of three years and fine. The above matters are narrated only to show that the offence alleged under the POCSO Act is not of a grievous nature in the given facts. Needless to say that, the other offences under the Penal Code, namely under Section 354 D, 451 and 506(1) are also not grievous or heinous offences, which are outside the purview of a composition based on settlement. Crl.M.C.No.1875 of 2022 -: 6 :-

7. Inasmuch as the matter has been settled by and between the parties as evidenced by Annexures-4 and 5 affidavits coupled with the statement of the defacto complainant, this Court is of the opinion that further proceedings in this matter is neither conducive, nor going to fetch any result in favour of the prosecution. The offences canvassed cannot be characterised as heinous offences, so as to take it outside the scope of a quashment on the strength of a settlement between the parties.

8. The general proposition that an offence under the POCSO Act cannot be quashed on the strength of a settlement, cannot apply to the instant facts. It is not the canvasing of an offence under the POCSO Act that matters, in the context of quashment. It is the nature, severity and gravity of the offense under the POCSO Act that matters. By that yardstick, this Court is of the definite opinion that the instant facts will not take itself outside the scope of a quashment. Crl.M.C.No.1875 of 2022 -: 7 :-

9. In the light of the above referred facts, this Court is of the opinion that the necessary parameters, as culled out in Narinder Singh and Others v. State of Punjab [(2014) 6 SCC 466], Madan Mohan Abbot v. State of Punjab [(2008) 4 SCC 582] and Gian Singh v. State of Punjab and another [(2012) 10 SCC 303], are fully satisfied. This court is convinced that further proceedings against the petitioner will be a futile exercise, inasmuch as the disputes have already been settled. There is little possibility of any conviction in the crime. Dehors the settlement arrived at by and between the parties, if they are compelled to face the criminal proceedings, the same, in the estimation of this Court, will amount to abuse of process of Court. The quashment sought for would secure the ends of justice. Learned counsel for the defacto complainant would also signify that the defacto complainant has no objection in quashing the above Sessions Case. Crl.M.C.No.1875 of 2022 -: 8 :-

9. In the circumstances, this Crl.M.C. is allowed Annexure-1 F.I.R, Annexure-2 Final Report, and all further proceedings in S.C.No.350/2020 before the Fast Track Special Court, Neyyattinkara, are hereby quashed. Sd/- C.JAYACHANDRAN, JUDGE Crl.M.C.No.1875 of 2022 -: 9 :- APPENDIX OF CRL.MC 1875/2022 PETITIONER ANNEXURES SEALED COVER 1 (ANNEXURE-1) THE TRUE COPY OF THE FIR IN CRIME NO.636/2019 OF NEMOM POLICE STATION, THIRUVANANTHAPURAM. SEALED COVER 2 (ANNEXURE-2) CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.636/2019 OF NEMOM POLICE STATION, THIRUVANANTHAPURAM SEALED COVER 3 (ANNEXURE-3) TRUE COPY OF THE ORDER DATED 16.07.2019 PASSED IN CRL.M.C.NO.4940/2019 ON THE FILEOF THIS HON'BLE COURT. SEALED COVER 4 (ANNEXURE-4) ORIGINAL OF THE AFFIDAVIT DATED 21.12.2021 EXECUTED BY THE DEFACTO COMPLAINANT/ALLEGED VICTIM SEALED COVER 5 (ANNEXURE-5) ORIGINAL OF THE AFFIDAVIT DATED 21.12.2021 EXECUTED BY THE MOTHER OF THE DEFACTO COMPLAINANT/ALLEGED VICTIM