‘Compromise not a passport out of a sexual offence’: Delhi HC refuses to quash POCSO case

The incident dates back to 2016, when a 15-year old girl purportedly ran away with a man. After police traced the duo’s whereabouts, the man had produced a marriage certificate — even as the girl was found to be a minor.

In her statement under CrPC Section 164, the girl claimed that she had voluntarily married the man and had consensual physical relations. Despite her claim, due to her age, IPC sections 376 (rape) and 366 (kidnapping), along with sections 4 and 6 (sexual assault) of the POCSO Act, and Section 10 of the Prevention of Child Marriage Act (PCMA), were added in the FIR against the man.

The accused man had moved the Delhi HC seeking quashing of the FIR on the ground that the two had arrived at a mutual agreement, and had married consensually after the girl disclosed that she was of legally marriageable age.

The prosecution, on the other hand, objected to the quashing of the FIR. It had submitted that any purported “consent” is irrelevant under the POCSO Act. It also said the girl deposed in court, supporting the prosecution’s case, and stated that she was subjected to sexual assault by the man.

Justice Sanjeev Narula, in the October 10, order noted that when penetrative sexual assault results in pregnancy, “the law deems it aggravated penetrative sexual assault” and “marriage or cohabitation at a later stage does not erase the offence”.

The judge recorded, “The Court’s approach has been forthright: compromise cannot be a passport out of a sexual offence… Rape is a non-compoundable offence, being an offence against society at large, and is not a matter that can be left to the discretion of the parties to compromise or settle.”

“… the PCMA criminalises child marriages… Whatever the civil status of the marriage (void or voidable in terms of the statute), the conduct remains penal where the bride is a child. To quash a case of child marriage and sexual offences on the plea of settlement would, in effect, grant judicial imprimatur to unlawful conduct that the Parliament has explicitly sought to deter.”

Dismissing the petition, the court reasoned, “On a prima facie consideration of the material placed by the prosecution, it appears that the victim was a minor at the relevant time and, upon recovery, was found to be pregnant. The medical findings, therefore, prima facie indicate penetrative sexual intercourse. In these circumstances, a subsequent compromise or mutual agreement between the parties, whereby the victim now expresses a wish to amicably resolve the matter, cannot obscure the nature of the offence alleged or dilute its gravity. Such offences are crimes against society at large, and not merely against an individual, and are therefore not amenable to private settlements.”