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Kitborlang Pariong v/s State of Meghalaya & Another

    Crl. Petn. No. 37 of 2022

    Decided On, 14 September 2022

    At, High Court of Meghalaya

    By, THE HONOURABLE MR. JUSTICE W. DIENGDOH

    For the Petitioner: N.M. Mansuri, Advocate. For the Respondents: S. Sengupta, Addl. PP & H. Kharmih, Addl. PP.



Judgment Text

Judgment (Oral):

1. Heard Mr. N.M. Mansuri, learned counsel for the petitioner who has submitted that this application under Section 482 Cr.PC read with Article 226 of the Constitution of India is filed with a prayer for exercise of this Court's inherent power to quash the FIR dated 12.07.2022 related to Nongstoin PS Case No. 51(7)2022 under Section 5(j)(ii)/6 of the POCSO Act, 2012.

2. The learned counsel for the petitioner has referred to annexure 1 of this petition which is a copy of the FIR dated 12.07.2022, lodged by WPSI D.P Nongbri informing the Officer-In Charge Nongstoin Police Station that a phone call was received on 08.07.2022 from Dr. Gaddiella Kharpuri of Ramrai PHC reporting on a case of teenage pregnancy wherein, a minor girl aged about 15 years 4 months was impregnated by her boyfriend, the petitioner herein and on the relevant date was about 4 months pregnant. The minor girl in her statement before the doctor has said that her boyfriend is ready to take all responsibility as he is the father of the baby. The informant has further stated that the delay in filing a complaint is because of the fact that the parents of the minor girl are unaware of the fact that their daughter was pregnant and that they did not want to file any complaint as it was a case of mutual consent.

3. The matter on being reported, the police has accordingly registered a case being Nongstoin PS Case No. 51(7)2022 under Section 5(j)(ii)/6 of the POCSO Act, 2012 and investigation was launched with the Investigating Officer noting down the statement of some witnesses including the alleged victim, the petitioner herein and the parents of the alleged victim.

4. The learned counsel for the petitioner has further submitted that from the records, it appears that all the witnesses although agreed on the fact that physical relationship between the petitioner and the minor girl had taken place resulting in the said pregnancy. However, what has to be considered here is that strictly speaking, the provisions of Section 5 & 6 of the POCSO Act may not be applicable inasmuch as no penetrative sexual assault had taken place since the act was consensual and as admitted by the alleged victim girl, it was an expression of the love relationship that she had with the petitioner.

5. The learned counsel for the petitioner has also submitted that in similar cases of this kind, this Court has caused closure of the related criminal proceedings when it has been prima facie proven that the sexual act and the resultant pregnancy was consensual and there was no force exerted to constitute assault, the fact that both parties are living together happily, prosecution of the accused/petitioner to justify an alleged offence perpetrated against the alleged victim girl would make no sense. In this regard, the case of Shri Kwantar Khongsit & 2 Ors. v. State of Meghalaya & 4 Ors.: Crl. Petn. No. 34 of 2022, order dated 10.08.2022 was referred to by the learned counsel in support of his case.

6. In view of the above, it is prayed that this petition may be allowed and the FIR dated 12.07.2022 as well as the process of investigation therein, be quashed.

7. Mr. S. Sengupta, learned, Addl. PP has submitted that the copy of the case diary in this case has been produced before this Court for perusal. However, the learned Addl. PP has fairly submitted that in the facts and circumstances of this case, the same being similar to other cases which has come up before this Court on the same subject matter and this Court has consistently taken the view that in a case of consensual sexual relationship, particularly leading to the marriage of the alleged victim and the accused, the leaning would generally be to allow the relationship to continue and to close the criminal proceedings against the accused/husband to facilitate a congenial atmosphere and relationship between the parties. Viewed thus, this Court may pass necessary orders it is further submitted.

8. Upon hearing the parties and on perusal of the case diary as well as the petition in hand, facts as stated above are not necessary to be repeated, this Court is convinced that a relationship, even physical relationship had developed between the petitioner and the alleged victim resulting in the pregnancy. The mother of the alleged victim in her statement has confirmed that her daughter was in a love relationship with the boy/petitioner and that he has showed his intention not to separate from her daughter. The alleged victim girl has also clearly indicated that the relationship leading to sexual relationship with the petitioner is one by consent and there is no force or assault involved.

9. This being the case, in similarly situated matters this Court has held that the POCSO Act has been enacted to safeguard children from sexual exploitation, however if a sexual relationship does not amount to sexual exploitation, particularly on the premise that it was consensual by nature, then the definition of sexual assault cannot be imputed in the case.

10. The case of Ranjit Raj Banshi v. State of West Bengal & Ors, C.R.A. No. 458 of 2018 wherein the Hon'ble Calcutta High Court vide order dated 17.09.2021 at para 47, 48 & 49 read as follows : -

47. In the present case, the victim girl was admittedly 16 years old and studied in Class XII at the relevant point of time. She was not nave enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as 'consent' as such, the expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression 'penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim.

48. As such, it cannot be said that the accused was guilty of penetrative sexual assault, as such, since here the act of penetration, even if true, would have to be taken not as an unilateral act of the accused but a participatory moment of passion invo

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lving the participation of both the victim and the accused. 49. Although the question of consent does not arise in case of a minor, in order to attract Section 376(1) of the IPC, it had to be established that the alleged offence was committed against the will of the victim. Read in conjunction, the provisions of Section 376 of the IPC and Section 3 of the POCSO Act ought to be construed on a similar footing and cannot incriminate the accused for a voluntary joint act of sexual union. has been relied upon by this Court to bring home this point. 11. In view of the above, this petition succeeds and is hereby allowed. 12. The FIR dated 12.07.2022 and the process of investigation thereto is hereby set aside and quashed. 13. Petition disposed of. No cost.
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