Marriage with victim not ground to quash rape/ POCSO proceedings: Kerala High Court

The Kerala High Court recently held that a settlement or marriage between an accused rapist and the survivor is not grounds to quash proceedings against the accused, especially when the offences attract the provisions of the Protection of Children from Sexual Offences(POCSO) Act, 2012. (Rahul PR v. State of Kerala).Single judge Justice Shircy V said that the accused must face trial before the trial court, regardless of the fact that he is currently married to his victim. .The Court highlighted that in the instant case, the petitioner stood accused of raping the girl when she was a minor, thereby attracting charges under the POCSO Act which makes the alleged offence all the more heinous.."When it is towards a child the gravity is all the more severe and excruciating as it may even low self-esteem, self confidence and dignity of the child and that the psychic effect and impact would cause a devastating effect on the minor and result in far-reaching consequences. The Special Act( POCSO Act) itself was enacted to protect children from sexual assault and harassment," the order stated..The Court ruled that, in such circumstances, a compromise of marriage entered between the parties does not vitiate the allegations against the accused.."When the magnitude of the crime is so grave and heinous as such to shock the sense of justice, settlement between the parties and a marriage subsequently between them are not matters for consideration to quash the proceedings in a criminal case. The argument that, now the victim has attained the age of majority and is living happily with petitioner are not valid grounds or justifiable reasons or decisive factors for consideration to quash the criminal proceedings as sought for. Therefore, the compromise and settlement entered between the parties are not accepted to hold that the allegations do not make out a case against the petitioners," Justice Shircy said. .The Court issued the order in a case where the petitioner stood accused of forcibly removing the then 17-year-old victim from her house and raping her..When the matter came to light, the accused was booked for offences punishable under Sections 366A, 376 and 34 of Indian Penal Code (IPC) and Section 4 read with Section 3, Section 6 read with Section 5 and Section 17 read with Section 16 of the POCSO Act..Thereafter, he approached the High Court to quash the First Information Report (FIR), the final report and further proceedings pending before an Additional District and Sessions Court in Thrissur..The counsel for the petitioner submitted that the entire matter has been settled between the parties and that the victim does not intend to proceed with the case against the petitioners. .A sworn affidavit from the victim was also submitted, stating that the first petitioner has married her under the Special Marriage Act in December 2020 and that they are now living together as husband and wife..The question considered by the Court was whether the FIR for an offence of rape could be quashed by exercising power under Section 482 of the Code of Criminal Procedure (CrPC), in view of the compromise between the parties..The Court observed that the apex Court, in a catena of decisions, has clarified that the powers under Section 482, CrPC is an exception and not the rule, which should be used sparingly with great caution and circumspection. .In the instant case, the Court observed that it was not the case of the petitioners that the offences under Sections 376 (punishment for rape) and 366A of the IPC and the POCSO Act were not attracted with respect to the alleged acts.It is only on the basis of an alleged settlement between the parties that the petitioners had sought to quash the criminal case, the Court noted. The Court declined to allow this plea in view of the gravity of the offence of rape, which it opined is an offence against society itself.."Rape is a very serious offence and it is doubtless that it is not an offence of private in nature but is also an offence towards society. It is worse than murder as humiliating and horrifying experience are caused to the victim and so it is considered as the most heinous, brutal and cruel crime against a woman," the Court said..It, therefore, ordered that the two accused petitioners before the Court have to stand the test of judicial scrutiny and face trial before the trial court. The second petitioner stood accused of abetting the alleged offences..[Read Judgment]