In W.P.(CRL) 1681/2023-DEL HC- Delhi HC quashes POCSO & rape case after considering upbringing & future of minor son of accused and prosecutrix
Justice Saurabh Banerjee [13-12-2023]

Read Order: AMIT KUMAR v. STATE NCT OF DELHI & ORS

Tulip Kanth

New Delhi, December 19, 2023: The Delhi High Court has quashed a POCSO & rape case registered against the accused while observing that the pendency and continuance of the FIR could have a negative impact not only upon the prosecutrix and the petitioner-accused but especially on the upbringing and the future of the minor son born out of their wedlock.

The petitioner had approached the High Court by filing petition under Article 226 of the Constitution of India read with Section 482 of the Code of the Criminal Procedure, 1973 (CrPC) seeking quashing of FIR registered under Sections 376/509 of the Indian Penal Code, 1860 (IPC) r/w Section 4 of The Protection of Children from Sexual Offences Act, 2012 (POCSO) and Sections 9/10/11 of Prohibition of Child Marriage Act, 2006 (PCM) and all proceedings emanating therefrom.

The FIR revealed that at the time of incident the prosecutrix, aged around 17 years old, felt pain in her stomach. An ultrasound revealed that she was almost 8 months pregnant. Then the FIR against the petitioner, who was alleged to be the father of the unborn child, was registered.

It was urged before the Court by the petitioner’s counsel that the petitioner and prosecutrix were having an affair since long. They also eloped and got married without the consent of their parents then the prosecutrix moved to her matrimonial home with the petitioner. It was further submitted that at the time of marriage, the prosecutrix had informed the petitioner and his family members that she was over the age of 18 years.

After her marriage to the petitioner, she had also conceived and delivered child. Presently, both petitioner and prosecutrix were living together as husband and wife under the same roof along with the male child born out of the wedlock.

The parents of prosecutrix had also accepted her marriage with the petitioner and both the prosecutrix and her mother had written to the Delhi Women Council and S.H.O., Burari qua withdrawal of the present FIR. It was then that the petitioner and the prosecutrix executed a Settlement Deed inter-se themselves

The single-judge Bench of Justice Saurabh Banerjee considered the fact that both the petitioner and prosecutrix were involved in a relationship since long which resulted in their marriage and cohabitation under the same roof with the parents of the petitioner. Eventually, they had since been blessed with a baby child as well.

Both their parents had also recognized the sanctity of their marriage and were supporting them and their marriage. None of them had raised any kind of objections regarding the marriage of the petitioner and the prosecutrix till date.

The Bench also opined that the parents of the prosecutrix had no grievance/ remorse against the petitioner and all the aforesaid had happened despite the pendency of the present FIR.

The Bench was mindful of the fact that the allegations levelled against the petitioner involved heinous offences having grave punishments in case of conviction. However, keeping all the aforesaid factors in mind, particularly as the prosecutrix had herself supported the petitioner without any coercion, duress and pressure and now they had been married & blessed with a son, the Court didn’t find any impediment in quashing the  FIR.

“As such, pendency and continuance of the present FIR under the existing circumstances can surely have a negative impact not only upon the prosecutrix and the petitioner but especially on the upbringing and the future of the minor son born out of their wedlock”, the Bench opined.

Observing that it would be in the interest of justice as also the parties and betterment of their future, especially that of their minor son to quash the present FIR, the Bench also reiterated, “More so, as no effective purpose would be served in case the FIR is kept pending as in view of the prevalent situation there is hardly any scope of the petitioner being convicted.” Reference was also made to Kundan & Anr. vs. State & Ors.

Lastly, the Bench made it clear that these observations and findings had only been made upon consideration of the extremely rare and exceptional circumstances involved herein and thus they should not be construed as a precedent.