Know The Law
Can A POCSO Case Be Withdrawn?
There is no denying the fact that sexual assaults on women are so horrific acts that it is mentally disturbing for a victim, especially when she is a child. Unfortunately, given the tenderness of the age, many process facts and details are missed and omitted during the investigation. The testimony of the victim has to be taken as a whole and the nitpicking of the minor’s testimony cannot be warranted to result in fair justice.
A Protection of Children from Sexual Offenses Act (POCSO) case cannot be withdrawn given the fact that it is a non-compoundable offense that involves the state and the accused. Once the FIR is filed and the criminal proceeding has started, the informant has no right to withdraw the complaint. However, in certain cases, the POCSO cases are quashed due to internal arrangements or genuine compromise between the parties. However, the courts think that in serious offenses like these, the crime is against the state and the private parties cannot compromise the matter and have emphasized the nature and scope of inherent powers given under Section 482 and Section 320 of the Criminal Procedure Code, 1973, which deals in the compounding of offenses.
Offenses and Penalties under POCSO Act
Touching the private parts of a child with a sexual intent or if a person makes a child touch the private part of themselves or another person, is called sexual assault. Penetration of male sexual parts into female sexual parts or penetrating of any object in the private parts or mouth of a child is called penetrative sexual assault.
The punishment for committing penetrative sexual assault on a child is imprisonment for a minimum of 7 years, which can extend to life imprisonment along with the payment of a fine.
- Punishment for Penetrative Sexual Assault on a child of 16 to 18 years of age is 10 years and if the child is below 16 years of age, it can be increased to 20 years along with the fine.
- Punishment for making pornography using a minor child is 3 years, along with a fine or both.
Withdrawal of POCSO Cases using Settlement or Compromise: Legal Considerations
It was observed by the Allahabad High Court that rape and POCSO cases cannot be quashed based on any compromise entered into by the parties and it is not legally permissible to quash the rape and the prevention of children from sexual offenses cases on the ground that the parties have reached from mutual settlement.
In one of the landmark cases, the application was filed by the applicant stating that the victim had given a statement under sections 161 and 164 in favor of the accused, and later on, the victim had tied knots with the accused, in which the opposite council stated that the filed FIR was false and frivolous, and the applicant was innocent. In the present case, the applicant and the opposite party No. 2 had settled the dispute mutually stating that the victim and accused were happily married as husband and wife. However, the court has taken a stand on the fact that the victim was a minor and a crime was established in this case. Therefore, the said compromise is not allowed under the ambit of law.
Landmark Judgements on Withdrawal of POCSO Cases Using Settlement or Compromise
Ranjeet Kumar vs State of Himachal Pradesh and Others
As per the ruling of the Himachal Pradesh High Court, the protection of children from sexual offense act cases can be quashed if the victim and the accused reach an authentic compromise or settlement and lead a happy married life. In an explanation, the court stated that in cases where the victim had earlier alleged that she had been subjected to sexual assault by the accused but later on settled the dispute by getting married to the accused, there is one such case where the court, after being satisfied, would not allow the prosecution to continue the case, leading to disturbance in the married life of the couple. The case was about the sexual harassment of a minor. However, the victim and the family had reconciled and amicably resolved the dispute among themselves. The court, while quashing the case, has inspected from all corners that the compromise of the child victim with the accused is inconsequential. The High Court exercised its inherent powers under Section 482 of the Criminal Procedure Code, establishing the authority to quash criminal proceedings in non-compoundable offenses.
Manoj Sharma vs State and Ors.
The question, in this case, was whether the first information report filed under sections 420 and 468 of the Indian penal code, 1872, could be quashed under section 482 of the Code of Criminal Procedure, 1908 if the accused and the complainant had compromised and settled the matter between themselves. However, the court relied on a case where it was observed that the circumstances of each case were different, and the sole objective was to prevent abuse and secure the ends of justice. Accordingly, the learned judges held that the power of the High Court under Section 482 of the Code of the Criminal Procedure to quash the criminal proceedings or the first information report or complaint, was not circumscribed by Section 320 of the Code of the Criminal Procedure.
The Kerala High Court has quashed a case against the accused under the Protection of Children from Sexual Offences Act (POCSO Act) and the Indian Penal Code (IPC). The accusations were of sexually abusing a minor on various occasions. Justice Gopinath stated that the allegations against the accused had been followed by a withdrawal from the end of the victim, given the fact that the victim and the accused were getting married. Further, the judges submitted that the petitioner was innocent and the marriage between the accused and the victim had been solemnized when the accused was released on interim bail. It was also stated that the victim was no longer aggrieved against the petitioner. Considering the factual circumstances, the court proceeded to quash the case.
Conclusion
Child sexual abuse is a form of abuse where a person uses the body of a child to satisfy their sexual gratification. Such incidents can lead to horrific experiences and mental trauma for a minor and should not be taken lightly by the law. Withdrawal of FIR basis the settlement and compromise might look like an easy solution, however, it can turn more horrendous for the victim who is already undergoing the repercussions of the crime.
Judges should exercise due care and inspection while withdrawing or quashing any POCSO complaint. In cases where legal advice is needed, consulting with a specialized advocate for POCSO cases can help navigate the complexities.