POCSO case against father of minor cannot be settled by compromise with mother: Kerala High Court

The Kerala High Court recently held that a case under the Protection of Children from Sexual Offences Act (POCSO Act) against a man accused of assaulting his own minor child cannot be dropped over a compromise arrived at between him and the child's mother [Shiju v. State of Kerala & Ors.].

Justice Kauser Edappagath held that any settlement entered into by a parent of a minor victim with the intention of ending criminal prosecution cannot be given legal sanction. Such settlements or compromises do not override the State's duty to prosecute offences against children, the Court said.

“The mother cannot legally settle or compromise a case against the father for sexual harassment or sexual assault of their minor daughter. Any compromise or out-of-court settlement effected by the parents of a minor victim with the object of stifling criminal prosecution cannot receive the sanction of law, nor can such a settlement override the State’s duty to prosecute offences against children. Courts, in the exercise of their parens patriae jurisdiction, bear a bounden duty to safeguard the rights of minor victims of sexual assault, even where parents fail to do so,” the Court said in its order.

The order was passed on a bail application filed by a man accused of making sexually coloured remarks at his 17-year-old daughter and touching her thighs and breasts with the intention to sexually assault her.

A case was registered against him for offences punishable under Sections 10, 9(l), 9(n), 12 and 11(i) of the POCSO Act. He was arrested on April 17 and has been in custody since then.

His first application for bail was rejected by the High Court following which he moved the present bail.

The accused once again argued that he has been falsely implicated and that there was no material on record to connect him to the alleged crime.

He also told the Court that the matter has since been settled between and the the child's mother. The mother also had no objection to the accused being released on bail.

The Court opined that the allegations in the case disclosed a grave premeditated crime.

"The accusation against the applicant is grave and prima facie discloses a premeditated criminal act. In her statement, the victim has narrated how she was mercilessly subjected to sexual assault by the applicant," the Court said.

The Court also took a dim view of the fact that the mother had chosen to settle the case, disregarding the welfare of her own daughter.

"It now emerges that the mother of the victim, who had initially lodged the complaint alleging sexual assault, has chosen to settle the matter in utter disregard of the interest and welfare of her daughter – a situation aptly described as the fence itself devouring the crop," the Court said.

It further noted that while the mother stated that there was no objection to the grant of bail, she did not refute that the incident occurred.

Since offences involving sexual offences are not compoundable, the Court refused to grant the accused bail and dismissed his bail application.

"The law does not permit parents or guardians of a minor victim to compromise, withdraw, or express no objection to the continuation of criminal proceedings or to the grant of bail in relation to an offence of incestuous sexual assault. Hence, the compromise cannot be accepted," the Court concluded.

The accused was represented by advocate Jerry Mathew.

Senior Public Prosecutor Aneeda Beegum appeared for the State.

[Read Order]