Page 1 of 41

HIGH COURT OF MEGHALAYA

AT SHILLONG

Crl.Petn. No. 92 of 2023

Reserved on : 24.02.2026

Pronounced on: 12.03.2026

1. Shri Shalenbor Wahlang

2. Smti B

...Petitioners

- versus -

1. State of Meghalaya represented by the Secretary ,

Government of Meghalaya, Home (Police) Department, East

Khasi Hills District, Meghalaya.

2. Smti Skhemkeri Syiem

...Respondents

Coram:

Hon’ble Mrs. Justice Revati Mohite Dere, Chief Justice

Hon’ble Mr. Justice H.S.Thangkhiew, Judge

Appearance:

For the Petitioners : Ms L. Khiangte, Adv.

Mr Th Rakesh, Adv.

For the Respondents : Mr A. Kumar, AG with

Mr R. Gurung, Addl PP

Mr A.H. Kharwanlang, Addl Sr GA

Mr S.P. Mahanta, Amicus Curiae with

Mr D. Dkhar, Adv.

i) Whether approved for Yes

reporting in Law journals etc.:

ii) Whether approved for publication Yes

in press:

Serial No. 01

Supplementary

List

Page 2 of 41

JUDGMENT : (per the Hon’ble, the Chief Justice)

The aforesaid petition is placed before us pursuant to the

reference made by the learned Single Judge (Hon’ble B.

Bhattacharjee, J) vide order dated 12

th June, 2024, in view of his

disagreement with the judgment and order dated 23

rd March,

2022 passed by the coordinate Bench (Hon’ble W. Diengdoh, J)

in Crl Petn No. 63 of 2021.

2. Although, the learned Single Judge has not framed the

issue for reference, having perused the said order dated 12

th

June, 2024, the following issue is framed:

Whether a case under the POCSO Act, 2012, which is a

Special Act, protecting children from sexual exploitation and

sexual abuse, and considered as heinous crime, can be quashed

with the consent of the accused and the victim, under Section

528 of BNSS, having regard to the fact, that the POCSO Act has

an overriding effect on any other law and there being no specific

exclusion, can any personal law or custom prevail over or

override the provisions of the POCSO Act?

Page 3 of 41

3. Brief facts giving rise to the filing of the aforesaid

petition.

The petitioner No. 1, aged 22 years (accused) and the

petitioner No. 2, aged 16 years (victim/prosecutrix) have filed the

aforesaid petition jointly seeking quashing of the FIR dated 3

rd

May, 2019 filed by the respondent No. 2 (i.e., grandmother of

petitioner No. 2) with the Diengpasoh Police Station, Shillong

being P.S. Case No. 5 (05) of 2019, alleging offences punishable

under Sections 5(j)(ii) and 6 of the POCSO Act, 2012. In the FIR,

the respondent No. 2 has alleged that the petitioner No. 2 aged

16 years was sexually assaulted by the petitioner No. 1 aged 22

years, resulting in the petitioner No. 2 becoming pregnant. After

investigation, the police filed charge-sheet as against the

petitioner No. 1 and the case is presently pending before the

learned Special Judge (POCSO), Shillong being Special (POCSO)

Case No. 103 of 2019.

According to the petitioner Nos. 1 and 2, they were in a

consensual relationship and from the said relationship they have

Page 4 of 41

a child and that they have been living together as husband and

wife since 2018. It is also contended that the said relationship

has been accepted by the family members of the petitioners.

Accordingly, the petitioner Nos. 1 and 2 have filed the aforesaid

petition seeking quashing of the FIR/proceeding with the consent

of the petitioner No. 2 (victim) and the respondent No. 2 (original

complainant, who is the grandmother of the petitioner No. 2).

4. It is in the aforesaid facts, that the learned Single Judge

(B.Bhattacharjee, J), made the following observations, whilst

making the aforesaid reference.

(i) that in the absence of any material to show when the

parties got married, under which prevailing custom

or law, it was not possible to consider what would be

the obligation of the parties towards each other in the

relationship;

(ii) that the object of the Prohibition of Child Marriage

Act which aims to discourage and abolish the

practice of Child Marriage and the provisions of the

Page 5 of 41

POCSO Act which protects children from sexual

exploitation and sexual abuse, cannot be ignored or

lost sight of; and

(iii) that the provisions of the POCSO Act shall have an

overriding effect on any other law, and that unless

and until there is a specific exclusion, no personal

law or custom can prevail over or override the

provisions of the POCSO Act.

5. The learned Single Judge having disagreed with the

judgment and order dated 23

rd March, 2022 passed by the

coordinate Bench of this Court (Hon’ble Diengdoh, J) in Crl.

Petn. No. 63 of 2021 (Shri Skhemborlang Suting and anr v.

State of Meghalaya & anr ), allowing a petition under Section

528 BNSS seeking quashing of the FIR/proceeding by consent of

the accused and the victim (prosecutrix), has referred the

aforesaid petition to the Division Bench of this Court for

consideration.

Page 6 of 41

6. Ms L. Khiangte, learned counsel for the petitioners

submitted that there is no impediment in law to quash the

FIR/proceeding, even if the case is one under the POCSO Act,

under Section 528 of BNSS (earlier, Section 482 Cr.P.C.). She

also submitted that, the parties i.e., the petitioner No. 1 and

petitioner No. 2 are living together and have a child from the said

relationship, who is now aged seven years. She further submitted

that both, i.e., petitioner No. 2 and the respondent No. 2 have

filed their respective affidavits giving their no objection/consent

to the quashing of the proceedings initiated against the petitioner

No. 1. Learned counsel for the petitioners further submitted that

if the FIR/proceeding is not quashed, grave injustice would be

caused not only to the petitioner No. 1, who is the bread winner

of the family but also to the petitioner No. 2 and the child born

from the said relationship resulting in grave miscarriage of

justice.

7. Mr A. Kumar, learned Advocate General fairly does not

dispute the fact, that there is no bar under Section 528 of BNSS

Page 7 of 41

(earlier, Section 482 Cr.P.C.) to quash proceeding, even if the

prosecution is one, under the POCSO Act. Learned Advocate

General submitted that, however, the power under Section 528

of BNSS (earlier, Section 482 Cr.P.C.) is to be exercised with due

caution and in exceptional cases, having regard to the facts and

circumstances of the case. Learned Advocate General also fairly

states that in a case of consensual relationship i.e., romantic

relationship where the boy and the girl are young and, if the

relationship is with consent, resulting in marriage and

sometimes, a child, there is no impediment in quashing the said

proceeding, inasmuch as, continuation of the proceeding will

jeopardise the lives of the parties as well as career of the husband

who is the bread winner. He submitted that in the State of

Meghalaya, marriages by co-habitation are also recognised and

as such, the same will also have to be borne in mind while

considering a case seeking quashing of the FIR/proceeding

under the POCSO Act.

Page 8 of 41

8. Mr S.P. Mahanta, learned Amicus Curiae submitted that

where the victim is between the age of 16 and 18, the court will

have to balance the equities and take into consideration the

nature of relationship between the parties, even if the minor’s

consent in law, is immaterial. He submitted that the peculiar

circumstances, particularly, in rural areas/villages will have to

be taken into consideration in cases of romantic relationships

and that the court will also have to take into consideration, lack

of awareness programme in villages and in schools. He thus,

submitted that, there is no bar under Section 528 of BNSS

(earlier, Section 482 Cr.P.C.) to quash proceeding under the

POCSO Act, if the Court is satisfied that the consent of the victim,

is an informed consent and is genuine.

9. Before we proceed to answer the reference, it would be

apposite to consider the scope of a petition seeking quashing of

a case under Section 528 of BNSS, with the consent of the

parties.

Page 9 of 41

10. The Apex Court in Gian Singh v. State of Punjab & anr

reported in (2012) 10 SCC 303, in para 61 of the said judgment

held as under:

“61. The position that emerges from the above discussion

can be summarised thus: the power of the High Court in

quashing a criminal proceeding or FIR or complaint in

exercise of its inherent jurisdiction is distinct and different

from the power given to a criminal court for compounding

the offences under Section 320 of the Code. Inherent power

is of wide plenitude with no statutory limitation but it has to

be exercised in accord with the guideline engrafted in such

power viz.: (i) to secure the ends of justice or (ii) to prevent

abuse of the process of any Court. In what cases power to

quash the criminal proceeding or complaint or F.I.R may be

exercised where the offender and victim have settled their

dispute would depend on the facts and circumstances of

each case and no category can be prescribed. However,

before exercise of such power, the High Court must have

due regard to the nature and gravity of the crime. Heinous

and serious offences of mental depravity or offences like

murder, rape, dacoity, etc. cannot be fittingly quashed even

though the victim or victim’s family and the offender have

settled the dispute. Such offences are not private in nature

and have serious impact on society. Similarly, any

compromise between the victim and offender in relation to

the offences under special statutes like Prevention of

Corruption Act or the offences committed by public servants

while working in that capacity etc.: cannot provide for any

basis for quashing criminal proceedings involving such

offences. But the criminal cases having overwhelmingly and

pre-dominatingly civil flavour stand on different footing for

the purposes of quashing, particularly the offences arising

from commercial, financial, mercantile, civil, partnership or

such like transactions or the offences arising out of

matrimony relating to dowry, etc. or the family disputes

Page 10 of 41

where the wrong is basically private or personal in nature

and the parties have resolved their entire dispute. In this

category of cases, High Court may quash criminal

proceedings if in its view, because of the compromise

between the offender and victim, the possibility of conviction

is remote and bleak and continuation of criminal case would

put accused to great oppression and prejudice and extreme

injustice would be caused to him by not quashing the

criminal case despite full and complete settlement and

compromise with the victim. In other words, the High Court

must consider whether it would be unfair or contrary to the

interest of justice to continue with the criminal proceeding or

continuation of the criminal proceeding would tantamount

to abuse of process of law despite settlement and

compromise between the victim and wrongdoer and

whether to secure the ends of justice, it is appropriate that

criminal case is put to an end and if the answer to the above

question(s) is in affirmative, the High Court shall be well

within its jurisdiction to quash the criminal proceeding.”

11. In Narinder Singh & ors v. State of Punjab reported in

(2014) 6 SCC 466, the Apex Court in paragraph 29 held as

under:

“29. In view of the aforesaid discussion, we sum up and lay

down the following principles by which the High Court would

be guided in giving adequate treatment to the settlement

between the parties and exercising its power under Section

482 of the Code while accepting the settlement and quashing

the proceedings or refusing to accept the settlement with

direction to continue with the criminal proceedings:

29.1. Power conferred under Section 482 of the Code is to be

distinguished from the power which lies in the Court to

Page 11 of 41

compound the offences under Section 320 of the Code. No

doubt, under Section 482 of the Code, the High Court has

inherent power to quash the criminal proceedings even in

those cases which are not compoundable, where the parties

have settled the matter between themselves. However, this

power is to be exercised sparingly and with caution.

29.2. When the parties have reached the settlement and on

that basis petition for quashing the criminal proceedings is

filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to form an

opinion on either of the aforesaid two objectives.

29.3. Such a power is not be exercised in those prosecutions

which involve heinous and serious offences of mental

depravity or offences like murder, rape, dacoity, etc. Such

offences are not private in nature and have a serious impact

on society. Similarly, for offences alleged to have been

committed under special statute like the Prevention of

Corruption Act or the offences committed by public servants

while working in that capacity are not to be quashed merely

on the basis of compromise between the victim and the

offender.

29.4. On the other hand, those criminal cases having

overwhelmingly and predominantly civil character,

particularly those arising out of commercial transactions or

arising out of matrimonial relationship or family disputes

should be quashed when the parties have resolved their

entire disputes among themselves.

29.5. While exercising its powers, the High Court is to

examine as to whether the possibility of conviction is remote

and bleak and continuation of criminal cases would put the

Page 12 of 41

accused to great oppression and prejudice and extreme

injustice would be caused to him by not quashing the

criminal cases.

29.6. Offences under Section 307 IPC would fall in the

category of heinous and serious offences and therefore is to

be generally treated as crime against the society and not

against the individual alone. However, the High Court would

not rest its decision merely because there is a mention

of Section 307 IPC in the FIR or the charge is framed under

this provision. It would be open to the High Court to examine

as to whether incorporation of Section 307 IPC is there for the

sake of it or the prosecution has collected sufficient evidence,

which if proved, would lead to proving the charge

under Section 307 IPC. For this purpose, it would be open to

the High Court to go by the nature of injury sustained,

whether such injury is inflicted on the vital/delegate parts of

the body, nature of weapons used etc. Medical report in

respect of injuries suffered by the victim can generally be the

guiding factor. On the basis of this prima facie analysis, the

High Court can examine as to whether there is a strong

possibility of conviction or the chances of conviction are

remote and bleak. In the former case it can refuse to accept

the settlement and quash the criminal proceedings whereas

in the latter case it would be permissible for the High Court

to accept the plea compounding the offence based on

complete settlement between the parties. At this stage, the

Court can also be swayed by the fact that the settlement

between the parties is going to result in harmony between

them which may improve their future relationship.

29.7. While deciding whether to exercise its power under

Section 482 of the Code or not, timings of settlement play a

crucial role. Those cases where the settlement is arrived at

immediately after the alleged commission of offence and the

matter is still under investigation, the High Court may be

liberal in accepting the settlement to quash the criminal

proceedings/investigation. It is because of the reason that at

Page 13 of 41

this stage the investigation is still on and even the charge

sheet has not been filed. Likewise, those cases where the

charge is framed but the evidence is yet to start or the

evidence is still at infancy stage, the High Court can show

benevolence in exercising its powers favourably, but after

prima facie assessment of the circumstances/material

mentioned above. On the other hand, where the prosecution

evidence is almost complete or after the conclusion of the

evidence the matter is at the stage of argument, normally the

High Court should refrain from exercising its power under

Section 482 of the Code, as in such cases the trial court

would be in a position to decide the case finally on merits

and to come a conclusion as to whether the offence

under Section 307 IPC is committed or not. Similarly, in those

cases where the conviction is already recorded by the trial

court and the matter is at the appellate stage before the High

Court, mere compromise between the parties would not be a

ground to accept the same resulting in acquittal of the

offender who has already been convicted by the trial court.

Here charge is proved under Section 307 IPC and conviction

is already recorded of a heinous crime and, therefore, there

is no question of sparing a convict found guilty of such a

crime.”

12. Similarly, in Parbatbhai Aahir alias Parba tbhai

Bhimsinhbhai Karmur and ors v. State of Gujarat & anr

reported in (2017) 9 SCC 641, the Apex Court reiterated in

paragraph 16 as under:

“16. The broad principles which emerge from the precedents

on the subject, may be summarised in the following

propositions:

Page 14 of 41

16.1. Section 482 preserves the inherent powers of the High

Court to prevent an abuse of the process of any court or to

secure the ends of justice. The provision does not confer new

powers. It only recognises and preserves powers which inhere

in the High Court.

16.2. The invocation of the jurisdiction of the High Court to

quash a First Information Report or a criminal proceeding on

the ground that a settlement has been arrived at between the

offender and the victim is not the same as the invocation of

jurisdiction for the purpose of compounding an offence. While

compounding an offence, the power of the court is governed

by the provisions of Section 320 of the Code of Criminal

Procedure, 1973. The power to quash under Section 482 is

attracted even if the offence is non-compoundable.

16.3. In forming an opinion whether a criminal proceeding or

complaint should be quashed in exercise of its jurisdiction

under Section 482, the High Court must evaluate whether the

ends of justice would justify the exercise of the inherent

power.

16.4. While the inherent power of the High Court has a wide

ambit and plenitude it has to be exercised (i) to secure the ends

of justice or (ii) to prevent an abuse of the process of any court.

16.5. The decision as to whether a complaint or first

information report should be quashed on the ground that the

offender and victim have settled the dispute, revolves

ultimately on the facts and circumstances of each case and no

exhaustive elaboration of principles can be formulated;

16.6. In the exercise of the power under Section 482 and

while dealing with a plea that the dispute has been settled,

the High Court must have due regard to the nature and gravity

of the offence. Heinous and serious offences involving mental

depravity or offences such as murder, rape and dacoity

cannot appropriately be quashed though the victim or the

Page 15 of 41

family of the victim have settled the dispute. Such offences

are, truly speaking, not private in nature but have a serious

impact upon society. The decision to continue with the trial in

such cases is founded on the overriding element of public

interest in punishing persons for serious offences.

16.7. As distinguished from serious offences, there may be

criminal cases which have an overwhelming or predominant

element of a civil dispute. They stand on a distinct footing in

so far as the exercise of the inherent power to quash is

concerned.

16.8. Criminal cases involving offences which arise from

commercial, financial, mercantile, partnership or similar

transactions with an essentially civil flavour may in

appropriate situations fall for quashing where parties have

settled the dispute.

16.9. In such a case, the High Court may quash the criminal

proceeding if in view of the compromise between the

disputants, the possibility of a conviction is remote and the

continuation of a criminal proceeding would cause oppression

and prejudice; and

16.10. There is yet an exception to the principle set out in

propositions 16.8 and 16.9 above. Economic offences

involving the financial and economic well-being of the state

have implications which lie beyond the domain of a mere

dispute between private disputants. The High Court would be

justified in declining to quash where the offender is involved

in an activity akin to a financial or economic fraud or

misdemeanour. The consequences of the act complained of

upon the financial or economic system will weigh in the

balance.”

Page 16 of 41

13. In the State of Uttar Pradesh v. Anurudh & anr

reported in 2026 SCC Online SC 40 , the Apex Court was

considering an appeal filed by the State of Uttar Pradesh, which

had challenged grant of bail to the accused therein. The accused

therein was facing the prosecution under Sections 363, 366 of

the IPC and, 7 and 8 of the POCSO Act, 2012. The victim was a

12-year-old child. The Apex Court observed that repeated judicial

notice was taken of misuse of the laws, including the POCSO Act.

Accordingly, the Apex Court directed its judgment to be

circulated to the Secretary, Law, Government of India, to

consider initiation of steps as may be possible to curb this

menace, inter alia, the introduction of a Romeo – Juliet clause

exempting genuine adolescent relationships from the stronghold

of this law; and also to consider enacting a mechanism enabling

the prosecution of those persons who by the use of these laws

seek to settle scores.

14. Considering the aforesaid, what emerges is that the High

Court has the inherent jurisdiction to quash a proceeding or FIR

Page 17 of 41

in exceptional cases, to secure the ends of justice and to prevent

abuse of the process of the Court, and to do complete justice

keeping in mind the parameters laid down by the Apex Court in

this regard and in the peculiar facts in hand of the case, before

it. It may also be noted that the inherent power is of wide

plenitude with no statutory limitation, however, the said power

has to be exercised in accordance with the guidelines engrafted

in such power and the judgments of the Apex Court.

15. At the outset, we may note that it is difficult to lay down

any straitjacket or fixed formula, as to when a POCSO case can

be quashed under Section 528 of BNSS (earlier, Section 482

Cr.P.C.), inasmuch as, what would be the exceptional cases

would depend on the facts and circumstances of the case, i.e.,

the age of the parties, whether the consent given by the victim is

an ‘informed’ consent, whether the parties have got married,

have a child, etc. No doubt, the object of enacting the POCSO Act

is laudable, but, at the same time we cannot ignore the harsh

realities that stare us in the face. Also, what cannot be lost sight

Page 18 of 41

of is, there is a minimum sentence stipulated under the POCSO

Act and the IPC/BNS, and hence, Courts now, cannot even

award a sentence lesser than the minimum, after recording

special and adequate reasons.

16. The POCSO Act has been specially enacted for protecting

the “child”, who is defined as any person below the age of 18

years. The salient feature of the POCSO Act is, that it is a gender-

neutral enactment which regards the best interest and wellbeing

of the child as being of paramount importance at every stage, i.e.,

from the time of registration of the FIR till completion of the trial

and includes giving physical, emotional, intellectual assistance

to the child, who is considered vulnerable, having been exploited.

Under the POCSO Act, consent of the child below the age of 18

years, is immaterial and is not ‘consent’ in the eyes of law, even

if the victim has consented to the sexual relationship.

17. It is pertinent to note, that prior to the enactment of the

POCSO Act, the age of consent for a girl was 16 years and that

Page 19 of 41

when POCSO Act was enacted, the age of consent was raised

from 16 years to 18 years. Even, Section 375 of the IPC was

amended by the Criminal Law (Amendment) Act, 2013 following

the recommendation of Justice J.S. Verma in the wake

the Nirbhaya incident. Thus, as a consequence of the aforesaid

provision, if a girl below 18 years, enters into a consensual

relationship with a boy, the said act would attract the rigours of

the POCSO Act, as well as, would constitute an offence under

Section 376 of the IPC. Thus, it is presumed under the law, that

a girl below the age of 18 years is not capable of giving consent

even if, she is a consenting party, making the boy guilty of

committing the offence under the POCSO Act. Even if the girl is

one day shy of 18 years, it would be an offence as the girl’s

consent is immaterial. The intent of the POCSO Act and Criminal

(Amendment) Act, 2013, was to target sexual exploitation of

children, whether male or female. However, today, we find that a

large number of cases pertaining to consensual

adolescent/teenage relationship, have risen, more particularly,

Page 20 of 41

between the age group 16 to 18 years, after the increase of the

age of consent from 16 to 18 years.

18. As noted above, the age of consent has been increased in

various Indian statutes from 16 years to 18 years. In countries

such as Hungary, Italy, Portugal, children under the age group

of 14 years are considered capable of giving consent to sex,

whereas, in Japan, London and Wales, the age of consent is 16

years. In countries such as Sri Lanka, the age of consent is 16

years and in Bangladesh, the age of consent is 14 years. At this

stage, it may also be noted, that the United Nations has formally

defined “Adolescent” as a person between 10 to 19 years of age

and ‘young people’ in South East region, as persons between 10

to 25 years of age. Infact, the genesis of the age of consent can

be traced back to the 19

th century, where a girl aged 11 years

(minor girl) was married off, to a man, aged 35 years. The girl,

aged 11 years died when her husband forcibly consummated the

marriage. This incident/case paved the way for the Legislation in

India, to enact the ‘Age of Consent Act’ 1891.

Page 21 of 41

19. Several High Courts from time to time, including the Apex

Court have flagged their concerns regarding prosecution of boys

in Romeo - Juliet cases i.e., romantic relationship cases. In Atul

Mishra v. State of Uttar Pradesh passed in Crl. Miscellaneous

Bail Application No. 53947 of 2021 decided on 25

th January,

2022, the Allahabad High Court while deciding the bail

application of the accused charged for an offence under the

POCSO Act, noted that the victim and the accused knew each

other from school, had eloped and were staying with each other

for a couple of years and that they even had a child from the said

relationship, clearly indicating that the relationship was

consensual. The Court in paragraph 15 of the said order noted

as under:

“15. Reverting back to the facts of the present case, when

both the parties (boy as well as girl) who are in their teens

and college going, both of them met in the school during NCC

parade, developed a natural inclination towards each other,

thereafter cutting across the caste barrier between them

eventually have decided to marry with each other. No doubt

the girl was barely 14½ years on the date of incident. Both

of them fled away, got married in a Shiv Temple at Delhi

and remained in company with each other for almost two

years during which the girl has given birth to a baby, who

is now 7-8 months old. She was clear in her mind that she

does not want to go back with her parent but wants to

Page 22 of 41

remain in the company of the applicant, to whom she has

accepted her husband. This relationship has given birth to

a baby on 21.5.2021.”

20. The Madhya Pradesh High Court , recently in a case

requested the Central Government to reduce the age of 18 years

to 16 years. The Court observed that the present age of 18 was

disrupting the fabric of the society as due to social media

awareness and easily accessible internet connectivity, children

were getting puberty at an early age resulting in getting attracted

to each other, resulting in consensual physical relationship.

21. Even the High Court of Karnataka, in the case of State of

Karnataka v. Basavraj : 2022 SCC OnLine Kar 1608

observed in paragraphs 29.8, 29.9 and 29.10 as under:

“29.8 Having come across several cases relating to minor

girls above the age of 16 years having fallen in love and

eloped and in the meantime, having had sexual intercourse

with the boy, we are of the considered opinion that the Law

Commission of India would have to rethink on the age

criteria, so as to take into consideration the ground realities.

29.9 The aspect of consent even by a girl of 16 years and

above would have to be considered if there is indeed an

offence under the IPC and/or POCSO Act. Normally when

Page 23 of 41

evidence is lead the victim is a major and the testimony

given then of an act committed while being a minor would

have to be given due value.

29.10 It is also seen that many of the above offences

which are deemed offences are deemed to have been

committed as a result of or on account of lack of knowledge

on the part of the minor girl and the boy. Many a time the

boy and girl involved are either closely related and/or very

well known to each other being class mates or otherwise.

One thing leads to the other and being of an impressionable

age, some things are done by a boy and girl, which ought

not to have been done and done without knowing the

applicability of POCSO Act or certain provisions of the IPC,

which make them an offence. Though lack of knowledge is

no excuse, can minors be presumed to have knowledge of

the applicable law would be the question required to be

asked in such a situation.”

22. Similarly, in Vijayalakshmi & another v. State Rep. by

the Inspector of Police and another: 2021 SCC On Line Mad

317, the Court while dealing with a case of quashing the

proceeding against an accused under the IPC, POSCO Act and

Prohibition of the Child Marriage Act, 2006, by consent, found

that during the trial, the victim and the family had turned hostile

and stated that relationship was consensual and the victim had

eloped with the boy on her own accord.

Page 24 of 41

23. The Apex court in the case of K. Kirubakaran v. State of

Tamil Nadu: 2025 SCC OnLine SC 2307 was dealing with a

case, where the accused was convicted for the offence punishable

under Section 366 of the IPC; Section 6 of the POSCO Act and

was sentenced to rigorous imprisonment for 5 years and 10

years, respectively with fine. The appeal of the accused was

dismissed by the High Court . It appears that during the

pendency of the said appeal before the High Court, the appellant

therein and the victim (prosecutrix) got married and the couple

was blessed with a child, who was one year old. The Apex Court

while considering the conviction of the appellant who had

challenged the judgment and order of conviction, was confronted

with one question, i.e., whether the proceeding could be quashed

considering the appellant was convicted of a heinous offence

despite the fact, that the appellant and the victim had got

married and, had a child and were happily living together? The

Apex Court in this context in paragraphs 6, 7, 8 and 9 observed

as under”

“6. We are conscious of the fact that a crime is not merely

a wrong against an individual but against society as a

Page 25 of 41

whole. When an offence is committed, it wounds the

collective conscience of the society and therefore the

society, acting through its elected lawmakers, determines

what would be the punishment for such an offence and

how an offender should be dealt with, t o deter its

recurrence. The criminal law is, thus, a manifestation of

the sovereign will of the society. However, the

administration of such law is not divorced from the

practical realities. Rendering justice demands a nuanced

approach. This Court tailors its decisions to the specifics of

each case: with firmness and severity wherever necessary

and it is merciful when warranted. It is also in the best

interest of society to bring a dispute to an end, wherever

possible. We draw inspiration from Cardozo, J. to hold that

the law aims to ensure not just punishment of the guilty,

but also harmony and restoration of the social order.

7. With such perspective in mind, we need to proceed to

balance the competing interests of justice, deterrence, and

rehabilitation.

8. The founding fathers of the Constitution conferred

this Court with the extraordinary power to do

“complete justice” in proper cases. This

constitutional power stands apart from all other

powers and is intended to avoid situations of

injustice being caused by the rigid application of

law.

9. Per the law made by the legislature, the appellant

having been found guilty of a heinous offence, the

proceedings in the present case on the basis of a

compromise between the appellant and his wife

cannot be quashed. But ignoring the cry of the

appellant’s wife for compassion and empathy will

not, in our opinion, serve the ends of justice. Even the

most serious offenders of law do receive justice

moderated by compassion from the courts, albeit in

Page 26 of 41

appropriate cases. Given the peculiar facts and

circumstances here, a balanced approach combining

practicality and empathy is necessary. The

appellant and the victim are not only legally

married, they are also in their family way. While

considering the offence committed by the appellant

punishable under the POCSO Act, we have discerned

that the crime was not the result of lust but love. The

victim of crime herself has expressed her desire to

live a peaceful and stable family life with the

appellant, upon whom she is dependent, without the

appellant carrying the indeli ble mark on his

forehead of being an offender. Continuation of the

criminal proceedings and the appellant’s

incarceration would only disrupt this familial unit

and cause irreparable harm to the victim, the infant

child, and the fabric of society itself.”

(emphasis supplied)

24. Accordingly, the Apex Court by invoking its power under

Article 142 of the Constitution quashed the proceeding against

the appellant - accused therein, including his conviction and

sentence.

25. Similarly, in In Re: Right to Privacy of Adolescents’ case

i.e., Sou Motu Writ Petition (C) No. 3 of 2023, the Apex Court

was dealing again with a case, under the POCSO Act. In the said

case, the trial court had convicted the accused therein under the

Page 27 of 41

provisions of the IPC and POCSO Act. Against the said judgment

and order of conviction, the accused had preferred an appeal

before the Calcutta High Court and the High Court in exercise of

its jurisdiction under Article 226 of the Constitution read with

Section 482 of the Cr.P.C. had set aside the conviction of the

accused. The said judgment and order of acquittal was

challenged by the State of West Bengal. The Apex Court by a

detailed judgment and order dated 20

th August, 2024 set aside

the impugned judgment of the High Court and restored the

verdict of the Special Court to the extent of conviction of the

accused under the POCSO Act. However, it directed that the

accused shall not be required to undergo sentence as awarded

by the trial court, having regard to the fact, that the accused was

married to the victim girl and from the said marriage, have a

child. The Apex Court had also taken suo motu cognizance of the

case and accordingly, In Re: Right to Privacy of Adolescents

with Sou Motu Writ Petition (C) No. 3 of 2023 reported in 2025

SCC OnLine SC 1200, the Court in its judgment and order dated

23

rd May, 2025, has set out in detail the plight of the victim girl

Page 28 of 41

in such cases (in the said case, the girl was 14 years of age). The

Court referred to the constitutional obligations of the State and

also observed that under the existing law, the State could have

taken adequate care of the victim, however, the same was not

done. The Court further noted that the State in its machinery

had failed and also there was a collective failure of the society at

large. Paragraphs 37 and 38 of the said judgment are reproduced

hereunder:

“37. It is the responsibility of the State to take care of

helpless victims of such heinous offences. Time and again,

we have held that the right to live a dignified life is an

integral part of the fundamental right guaranteed under

Article 21 of the Constitution of India. Article 21

encompasses the right to lead a healthy life. The minor

child, who is the victim of the offences under the POCSO

Act, is also deprived of the fundamental right to live a

dignified and healthy life. The same is the case of the child

born to the victim as a result of the offence. All the

provisions of the JJ Act regarding taking care of such

children and rehabilitating them are consistent with Article

21 of the Constitution of India. Therefore, immediately after

the knowledge of the commission of a heinous offence

under the POCSO Act, the State, its agencies and

instrumentalities must step in and render all possible aid

to the victim children, which will enable them to lead a

dignified life. The failure to do so will amount to a violation

of the fundamental rights guaranteed to the victim children

under Article 21. The police must strictly implement

subsection (6) of Section 19 of the POCSO Act. If that is not

done, the victim children are deprived of the benefits of the

Page 29 of 41

welfare measures under the JJ Act. Compliance with

Section 19(6) is of vital importance. Non-compliance thereof

will lead to a violation of Article 21.

38. Unfortunately, in our society, due to whatever reasons,

we find that there are cases and cases where the parents

of the victims of the offences under the POSCO Act

abandon the victims. In such a case, it is the duty of the

State to provide shelter, food, c lothing, education

opportunities, etc., to the victim of the offences as provided

in law. Even the child born to such a victim needs to be

taken care of in a similar manner by the State. After the

victim attains the majority, the State will have to ensure

that the victim of the offence can stand on his/her legs and,

at least, think of leading a dignified life. That is precisely

what Section 46 of the JJ Act provides. Sadly, in the

present case, there is a complete failure of the State

machinery. Nobody came to rescue the victim of the

offence, and thus, for her survival, no option was left to her

but to seek shelter with the accused."

26. Thus, the Apex Court in the said case broadly considered

three issues i.e., (i) the issue of sentencing; (ii) the issue with

regard to rehabilitation of the victim and her child; and (iii) about

adopting measures for adolescents’ wellbeing and child

protection which goes to the root cause of the problem in our

changing society. The Apex Court noted, that in this particular

case, it was not the legal crime which had caused trauma to the

victim, rather it was the legal battle which ensued, consequent

Page 30 of 41

to the crime that had taken a toll on the victim. It noted that the

victim herself was required to raise funds for the legal battle to

bring her husband out from the jail. The Court further noted that

the facts of the case was an eye-opener for everyone, highlighting

the lacuna in the legal system. It noted that though the incident

was seen as a crime in law, the victim did not accept it as one.

The Court not only perused the report submitted by the

Committee so appointed but also interacted with the victim, after

which they opined that if the accused was sent to jail, the worse

sufferer would be the victim herself. The Court further noted that

the society, the family of the victim and the legal system had done

enough injustice to the victim; that the victim was subjected to

enough trauma and agony; and, that it did not want to further

add injustice to the victim by sending her husband to jail. In

addition to the aforesaid, the Court directed that the victim be

given assistance to complete her education and settle down in

life and that the victim’s daughter be provided with education;

and, overall ensure, better living conditions for her family.

Page 31 of 41

27. In both, the aforesaid cases i.e., K. Kirubakaran (supra)

and in In Re: Right to Privacy of Adolescents (supra), the Apex

court was dealing with a POCSO case, and had exercised its

power under Article 142 of the Constitution to do justice. It was

further noted, in each of the cases, that the cases will not be

treated as a precedent.

28. Infact, recently the Apex Court in the case of State of U.P.

v. Anurudh and another reported in 2026 SCC OnLine SC 40,

referred the said case to the Government of India to consider

introduction of a Romeo – Juliet clause exempting genuine

adolescent relationships from the stronghold of POCSO. In this

case, the Apex Court took judicial notice of the judgment of the

Allahabad High Court in Satish alias Chand v. State of U.P.

[Crl. Misc. Bail Appl. No. 18596 of 2024] wherein, the High

Court noted four factors to be considered with respect to POCSO

cases when it comes to consensual relationship between consent

adolescents:

“A. Assess the Context: Each case should be evaluated on

its individual facts and circumstances. The nature of the

Page 32 of 41

relationship and the intentions of both parties should be

carefully examined.

B. Consider Victim’s Statement: The statement of the

alleged victim should be given due consideration. If the

relationship is consensual and based on mutual affection,

this should be factored into decisions regarding bail and

prosecution.

C. Avoid Perversity of Justice: Ignoring the consensual

nature of a relationship can lead to unjust outcomes, such

as wrongful imprisonment. The judicial system should aim

to balance the protection of minors with the recognition of

their autonomy in certain contexts. Here the age comes out

to be an important factor.

D. Judicial Discretion: Court should use their discretion

wisely, ensuring that the application of POCSO does not

inadvertently harm the very individuals it is meant to

protect.”

29. In today’s times, what cannot be lost sight of is, with the

advent of technology and easy accessibility to information

through internet and social media, seekers (children) can easily

find material or get information regarding sensitive topics, i.e.,

sexual information which may have a positive or negativ e

influence upon the children. It may also be noted that this is an

era where there is free access to internet, mobile, movies which

create a deep impact on the minds of the children creating

Page 33 of 41

inquisitiveness and attraction towards the other sex as also

infatuation.

30. What emerges from the aforesaid discussions and the

judgments and orders of various courts is that although the

statutory age of consent remains binding, as the law stands

today, the facts of each case, particularly, the age proximity,

voluntariness of the relationship and the future wellbeing of the

individuals (victim and child born, if any), etc., must be taken

into consideration so that the object of the law is preserved

without doing manifest injustice to the parties. No doubt, the

laudable object of the POCSO Act is to protect minor children

from sexual abuse and exploitation, however, in its application,

it has revealed serious issues between legislative design, lived

realities and constitutional values. Its detrimental impact has

also been observed where there is illiteracy and where

adolescents are in a consensual love relationship without the

knowledge of the applicable laws and the implications of their

actions. A lot many cases arise out of adolescent relationship

Page 34 of 41

often involving girls between 16 to 18 years and boys who are

classmates, neighbours or are closely acquainted. These

adolescents engage in relationships without knowing the

applicability of the POCSO Act/BNS. Since ignorance of law is no

excuse, their actions are liable to prosecution. Courts have

observed that in such cases, complaints have often been made

due to parental opposition or by parents or by doctors, when the

girls go for check-up, rather than by the victim herself. It is also

noted that in such cases, subsequently, the victim becomes

hostile, refusing to depose against the boy and once the girl

attains majority, she asserts her autonomy. Adolescent boys,

who are in a consensual relationship are also required to face the

full rigour of the criminal process which potentially has an

effect/impact on their career, education, etc., making the

damage irreversible. Of course, arrest, detention, registration of

FIR against the boy leads to boys dropping out of school,

termination of education, issues of employment and future

career prospects due to criminal records even if, ultimately

acquitted. It creates barriers of employment and future

Page 35 of 41

opportunities for adolescent boys, despite the relationship being

consensual i.e., romantic relationship.

31. The ground realities in the State of Meghalaya cannot be

ignored and lost sight of. It shows high incidents of adolescent

consensual relationships culminating in elopement and early

marriage or living together, as husband and wife, which is

recognised by the society . Infact, cases of adolescent

relationships where the parties i.e., the victim and the boy have

got married or are living together as husband and wife and have

a child from the said relationship are far too many, resulting in

parties filing petitions under Section 528 BNSS (earlier, Section

482 Cr.P.C.) seeking quashing of the proceeding by consent of

the parties.

32. As pointed out by the learned Advocate General , in

Meghalaya, the social economic marginalisation of any

community, the limited reach of formal legal and health services

in remote and rural/tribal areas, and the cultural practices and

Page 36 of 41

norms that shape adolescent behaviour and family dynamics ,

raise huge concern. He submitted that in fact, the rigid

application of a uniform age of consent, without regard to the

consensual nature of relationships or the proximity in age

between the parties , produces outcomes that are

disproportionately punitive, socially disruptive and contrary to

the rehabilitative and protective objectives of child-centric

legislation. Learned Advocate General further submitted that the

State of Meghalaya is confronted with unique societal dynamics,

distinct socio-cultural realities and ground level implementation

challenges, that may differ significantly from conditions

prevailing in other parts of the country. He submitted that, infact

the State of Meghalaya, may have to consider whether any

amendment is necessitated in the POCSO Act which would

necessarily have to be premised upon thorough deliberation,

comprehensive data analysis and careful consideration of

multiple factors. He submitted that the State in this context

would be required to ensure that any amendment does not in

any way dilute or compromise the protection afforded to children

Page 37 of 41

from exploitation, abuse and trafficking and that the said

amendment remains at all times consistent with the paramount

and best interests of the child, as understood both, domestically

and under the international law.

33. What also cannot be lost sight of is, that in Meghalaya,

matrilineal system is a rare, ancient societal structure among the

Khasi, Garo and Jaintia tribes, where lineage and inheritance

pass through the mother. Children take their mother’s surname,

the youngest daughter inherits the property (is the custodian of

ancestral property) and the husband often moves into the wife’s

house. The system is believed to have originated from an agrarian

society and the need to protect the family structure, ensuring

women’s economic security, social stability and the preservation

of tribal identity. Infact, in the Khasi community, women have

more independence than women in many patriarchal

communities, including the freedom to select their partners,

remarry without shame and take an active role in public places

like market place and businesses. It is in this background that

Page 38 of 41

this Court would have to consider a case seeking quashing of a

POCSO case by consent, keeping in mind all factors, including

the girl’s (victim’s) and her child’s social security, by ensuring

that she and the child get the benefit of the government schemes,

including under the POCSO Act.

34. Thus, from the aforesaid discussion, quashing of a POCSO

case under Section 528 BNSS by consent, is permissible even if

it is a special statute and there is no specific exclusion of any

present law/custom. However, the said discretion has to be used

with due care and caution and circumspection in exceptional

cases, to do justice. As noted earlier, there cannot be any

straitjacket formula as to in which cases the said discretion can

or cannot be exercised, inasmuch as, that would depend on the

facts and circumstances of each case i.e., the age of the parties

coming before the court; whether the consent given by the victim

is an informed consent and not under coercion of the family

members or the boy; that the victim and the accused are married

and have a child or are living together as husband and wife, as

Page 39 of 41

per the customs in the State of Meghalaya, etc. Where parties are

living together as husband and wife or are married, a police

report, or a report from any authority, be called for, verifying the

said claim. Also, while considering whether the consent of the

victim is an ‘informed consent’, it is necessary that the victim

places her affidavit on record giving her ‘No Objection’ to the

quashing of the case. That, before such an affidavit is accepted,

in order to ensure that the consent is an informed consent, the

victim may be sent before the Secretary, MLSA or Secretary,

DLSA to ascertain whether the consent is an informed consent,

by giving her time to ponder over the same; and a report be called

for, before such quashing petition is considered. While quashing

the case, the Government schemes that may be available to a

victim in a POCSO Act and the child born from the said

relationship also be given due weightage as suggested and

directed by the Apex Court in the case of Re: Right to Privacy

of Adolescents (supra).

Page 40 of 41

35. No doubt, we are conscious of the fact that a case under

POCSO Act, is not a case against an individual, but is an offence

against the society as a whole, however, the administration or

enforcement of the law cannot be divorced from lived realities.

Rendering justice demands not only that the law be applied with

precision, but also that it be tempered with fairness, compassion

and empathy when the situation/facts of a case, warrant it.

Thus, it is necessary to maintain a fine balance between the

competing interests of justice, deterrence and rehabilitation.

Where the victim and the boy are married or are living together

as husband and wife (and recognised), and have a

child/children, sending the boy to jail would not serve the cause

of justice, rather it would cause great injustice to the victim and

the child born from the said consensual relationship , as

ultimately, the aim of the law is to do justice. Thus, in cases

where the court comes to the conclusion, that the consent given

by the victim is a genuine and informed consent and that it would

be greater injustice to send the boy to jail, instead of letting the

parties live together as one family, the Court may consider

Page 41 of 41

quashing the case, pending trial, keeping in mind what is stated

aforesaid. We may note, considering the large number of POCSO

cases, in particular Romeo – Juliet cases, it is the responsibility

of the State Government to create awareness amongst the people,

including the children about the provisions of the POCSO Act, its

punishment, etc., not only in the cities but also in the interior

and remote places, including schools, colleges, etc.

36. Thus, the reference is answered in the aforesaid terms.

Place the petition for further consideration on merits, before the

Single Bench of the Chief Justice.

(H.S.Thangkhiew) (Revati Mohite Dere)

Judge Chief Justice

Meghalaya

12.03.2026

“Sylvana PS”