Delhi High Court lays down guidelines for quashing POCSO cases involving consensual sex

In a significant ruling, the Delhi High Court on Thursday laid down a set of guidelines for quashing cases under the Protection of Children from Sexual Offences Act (POCSO Act) when the victim denies having suffered any actual harm.

Justice Anup Jairam Bhambhani observed that in many POCSO cases, there might be a de juré victim, a victim as formally recognised by law, but not a de facto or actual victim who has suffered any harm or loss.

The Court noted that many such cases exist where criminal cases are registered over "consensual" relationships between a minor close to attaining 18 years and an adult who is not much older than them. Often, such relationships culminate in marriage and children.

The Court held that when a de juré victim consents to quashing a POCSO case against an accused, courts must record its satisfaction on the following points:

• Is de-juré victim is genuinely acting on her own free will and has not been misled, pressurised or deceived;

• Has de-juré victim taken a consistent stand in favour of closing the case from the inception of the criminal proceedings;

• Do the circumstances of the case justify an inference that the acts that the parties indulged in were on the volition of the de-juré victim;

• Does the marriage or other arrangement, based on which the offender and the de-juré victim are seeking closure of criminal proceedings, evokes confidence on the part of the court;

• Have the parties have been living together as a family for a length of time;

• Were any children born to the parties whose future would also be impacted by a decision not to quash the criminal proceedings;

• Is the offender accused of having committed any violence or brutality on the de-juré victim; a

• What were the respective ages of the offender and the de-juré victim at the relevant time and the ramifications of the relative age difference and minority.

The Court added that these considerations are far from exhaustive and that courts must interact with all parties before making a decision on whether or not to quash a POCSO case.

"Ultimately, the decision to quash criminal proceedings under the POCSO Act must be founded on the best interests of the de-juré victim and the children, if any, born from the union of the parties," the Court said.

The Court passed the judgment while quashing the POCSO case against a man who had a child with a 17-year-old girl when he was 22 years old. Both parties claimed that they had gotten married according to Sikh rituals. The case was not registered on the girl's complaint but rather by hospital authorities who noticed her age when she gave birth to the child. They claimed they have been happily residing together as a family since then.

The Court at the outset said that this was one of many POCSO cases which exposed the disconnect between a rigid legal construct and the human lives it seeks to govern.

Cases such as the one involving the petition can be described as a "crime without a victim", the Court said. While the law treats a minor's consent as legally irrelevant, there exist many consensual adolescent relationships where no harm was caused.

The Court opined that this produces a conceptual dissonance where the minor girl is construed as a victim not because she endured any demonstrable harm but because the statutory framework denies her capacity for valid consent.

"A strict textual approach to the law, when deployed in cases such as the present one, in effect, prioritises a protective, statutebased understanding of harm over lived reality, thereby collapsing the distinction between actual victimhood and presumed vulnerability," the Court added.

It also noted that most courts have opted to quash proceedings in such POCSO cases, especially when parties have subsequently married and have children.

The Court made it clear that it is not entering into the realm of consent of a minor in relation to a POCSO offence or into any ex-post facto condonation of such offence.

But to force proceedings to continue when it would negatively impact the de juré victim herself would defeat the ends of justice, the Court said.

However, it also cautioned against permitting misuse of "compromise" quashing by unscrulpulous offenders against vulnerable victims.

The petitioner was represented by advocates Lokesh Kumar Mishra, Abhishek Kaushik and Nadeem Ahmed.

Additional Standing Counsel Anand V Khatri appeared for the State.

[Read Judgment]