# Neelam v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 1608
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-20
- **Case number:** Application U/S 482. No. 12717 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neelam-v-state-of-u-p-anr-50228
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 363, 366 and 120-B , The
Protection
of
Children
from
Sexual
Offences Act, 2012 - Section 2(d), 16/17 -
proceedings under Section 376 I.P.C. and
POCSO Act, cannot be quashed on the
basis of a compromise between the
accused and the victim. (Para - 10)

(B) Criminal Law - adjudication of cases
involving gender related crimes - courts
should not suggest or entertain any
notions (or encourage any steps) towards
compromises between the prosecutrix and
the accused to get married, suggest or
mandate mediation between the accused
and
the
survivor,
or
any
form
of
compromise as it is beyond their powers
and jurisdiction. (Para - 8)

Compromise application filed - signed by
applicant, prosecutrix, first informant, and
prosecutrix's mother and father - case against
applicant - conspired with - to cause prosecutrix
to elope with a Class X student - application
states - prosecutrix, informant, and husband do
not want to pursue prosecution further -
prosecutrix
and
her
parents
moved
an
application seeking to compromise. (Para -
2,3)

HELD:- No good grounds to quash ongoing trial
proceedings based on the provided facts. (Para
- 11)

Application u/s 482 Cr.P.C. rejected. (E-7)

List of Cases cited:

## Text

1608 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid case, both the petitions stand
dismissed.
----------
(2023) 5 ILRA 1608
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.04.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Application U/S 482. No. 12717 of 2023

Neelam ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Shashi Prakash Misra, Sri Jai Prakash
Singh

Counsel for the Opposite Parties:
G.A., Sri Pramod Kumar Pandey

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 363, 366 and 120-B , The
Protection
of
Children
from
Sexual
Offences Act, 2012 - Section 2(d), 16/17 -
proceedings under Section 376 I.P.C. and
POCSO Act, cannot be quashed on the
basis of a compromise between the
accused and the victim. (Para - 10)

(B) Criminal Law - adjudication of cases
involving gender related crimes - courts
should not suggest or entertain any
notions (or encourage any steps) towards
compromises between the prosecutrix and
the accused to get married, suggest or
mandate mediation between the accused
and
the
survivor,
or
any
form
of
compromise as it is beyond their powers
and jurisdiction. (Para - 8)

Compromise application filed - signed by
applicant, prosecutrix, first informant, and
prosecutrix's mother and father - case against
applicant - conspired with - to cause prosecutrix
to elope with a Class X student - application
states - prosecutrix, informant, and husband do
not want to pursue prosecution further -
prosecutrix
and
her
parents
moved
an
application seeking to compromise. (Para -
2,3)

HELD:- No good grounds to quash ongoing trial
proceedings based on the provided facts. (Para
- 11)

Application u/s 482 Cr.P.C. rejected. (E-7)

List of Cases cited:

1. Aparna Bhat & ors. Vs St. of M.P. & anr.,
2021 SCC OnLine SC 230

2. Pravin Kumar Singh & ors. Vs St. of U.P.
Thru. Prin. Secy. Home Deptt. & anr., 2023 SCC
OnLine All 131

3. Nardeep Singh Cheema @ Navdeep Singh
Cheema Vs St. of Punj. & ors., CRM-M-22702020

4. Om Prakash Vs St. of U.P. & anr., 2023 SCC
OnLine All 93

(Delivered by Hon'ble J.J. Munir, J.)

1. This application has been filed
seeking to quash the proceedings of Special
Sessions Trial No. 71 of 2018 (arising out
of Case Crime No. 1888 of 2017 (State v.
Neelam and others) under Sections 363,
366 and 120-B I.P.C. and Section 16/17 of
the Protection of Children from Sexual
Offences Act, 2012, Police Station -
Bakhira, District - Sant Kabir Nagar,
pending before the Court of the Additional
Sessions Judge/Special Judge (POCSO
Act), Sant Kabir Nagar.

2. The submission of the learned
Counsel for the applicant is that a
compromise application dated 13.12.2023
has been filed, signed by the applicant, the
prosecutrix, as also the first informant and
5 All. Neelam Vs. State of U.P. & Anr.
1609
her husband, that is to say, the mother and
father of the prosecutrix. The case against
the applicant is that she along with one
Aman, conspired to cause the prosecutrix to
elope with one Amiullah. The prosecutrix
at the time when she eloped, was aged
fifteen years and a student of Class X,
reading in the local inter-college. It is true
that a compromise application has been
filed, which is signed by the informant, the
prosecutrix, the prosecutrix's father and
also by the applicant, where it is said that
the prosecutrix, the informant and her
husband do not want to pursue the
prosecution any further. The prosecutrix's
testimony during trial was recorded, where
she testified as P.W. 2 on 10.05.2019. The
relevant part of her testimony reads:

"अमिउल्लाह िुझे लेकर िुुंबई गया वहााँ
अमिउल्लाह िुझको लेकर एक जगह गया था और
रात िें िेरे साथ िेरी इच्छा के मवरुद्ध बलात्कार मकया
और धिकी मिया मकसी से कहोगी तो तुम्हारे भाई की
हत्या कर िेंगे। बलात्कार वाली बात िैंने डर के
कारण िमहला मसपाही को नहीुं बताया था। अिन
िुुंबई िें मिला था बस स्टेशन से "अमिउल्लाह के
साथ किरे पर ले गया। िुझे भागने िें नीलि और
अिन की सामजस थी।"

3. Now, much after that testimony,
the prosecutrix and her parents have moved
an application seeking to compromise on
13.12.2022.

4. Heard Mr. Jai Prakash Singh,
Advocate holding brief of Mr. Shashi
Prakash Misra, learned Counsel for the
applicant, Mr. Pramod Kumar Pandey,
learned Counsel appearing on behalf of
opposite party no. 2 and Mr. Shashi
Shekhar Tiwari, learned A.G.A. on behalf
of the State.

5. The case under the Protection of
Children from Sexual Offences Act, 2012
(for short, 'the Act of 2012') is not a private
dispute or an offence of a kind that may be
so limited to the interest of the informant
and the accused, that the State may not
have much to say about. To the contrary,
the Act of 2012 is a special statute, which
has been enacted with objects and reasons
that read:

"STATEMENT OF OBJECTS
AND REASONS

Article 15 of the Constitution,
inter alia, confers upon the State powers to
make
special
provision
for
children.
Further, article 39, inter alia, provides that
the State shall in particular direct its policy
towards securing that the tender age of
children are not abused and their childhood
and youth are protected against exploitation
and they are given facilities to develop in a
healthy manner and in conditions of
freedom and dignity.

2.
The
United
Nations
Convention on the Rights of Children,
ratified by India on 11th December, 1992,
requires the State Parties to undertake all
appropriate
national,
bilateral
and
multilateral measures to prevent (a) the
inducement or coercion of a child to engage
in any unlawful sexual activity; (b) the
exploitative use of children in prostitution
or other unlawful sexual practices; and (c)
the
exploitative
use
of
children
in
pornographic performances and materials.

3. The data collected by the
National Crime Records Bureau shows that
there has been increase in cases of sexual
offences
against
children.
This
is
corroborated by the Study on Child Abuse:
India 2007' conducted by the Ministry of
Women
and
Child
Development.
Moreover, sexual offences against children
1610 INDIAN LAW REPORTS ALLAHABAD SERIES
are not adequately addressed by the
existing laws. A large number of such
offences are neither specifically provided
for nor are they adequately penalised. The
interests of the child, both as a victim as
well as a witness, need to be protected. It is
felt that offences against children need to
be defined explicitly and countered through
commensurate penalties as an effective
deterrence.

4. It is, therefore, proposed to
enact a self contained comprehensive
legislation inter alia to provide for
protection of children from the offences of
sexual assault, sexual harassment and
pornography
with
due
regard
for
safeguarding the interest and well being of
the child at every stage of the judicial
process,
incorporating
child-friendly
procedures for reporting, recording of
evidence,
investigation
and
trial
of
offences. and provision for establishment
of Special Courts for speedy trial of such
offences.

5. The Bill would contribute to
enforcement of the right of all children to
safety, security and protection from sexual
abuse and exploitation.

6. The notes on clauses explain in
detail the various provisions contained in
the Bill.

7. The Bill seeks to achieve the
above objectives."

6. The enacting clause of the Act
reads as follows:

"An Act to protect children from
offences
of
sexual
assault,
sexual
harassment and pornography and provide
for establishment of Special Courts for trial
of such offences and for matters connected
therewith or incidental thereto.

WHEREAS clause (3) of article
15 of the Constitution, inter alia, empowers
the State to make special provisions for
children;

AND
WHEREAS,
the
Government of India has acceded on the
11th December, 1992 to the Convention on
the Rights of the Child, adopted by the
General Assembly of the United Nations,
which has prescribed a set of standards to
be followed by all State parties in securing
the best interests of the child;

AND WHEREAS it is necessary
for the proper development of the child that
his or her right to privacy and confidentiality
be protected and respected by every person
by all means and through all stages of a
judicial process involving the child;

AND WHEREAS it is imperative
that the law operates in a manner that the
best interest and well being of the child are
regarded as being of paramount importance
at every stage, to ensure the healthy
physical, emotional, intellectual and social
development of the child;

AND
WHEREAS
the
State
Parties to the Convention on the Rights of
the Child are required to undertake all
appropriate
national,
bilateral
and
multilateral measures to prevent-

(a) the inducement or coercion of
a child to engage in any unlawful sexual
activity;

(b)
the
exploitative
use
of
children in prostitution or other unlawful
sexual practices;
5 All. Neelam Vs. State of U.P. & Anr.
1611

(c)
the
exploitative
use
of
children in pornographic performances and
materials;

AND
WHEREAS
sexual
exploitation and sexual abuse of children
are heinous crimes and need to be
effectively addressed.

Be it enacted by Parliament in the
Sixty-third Year of the Republic of India as
follows:-"

7. It is evident that the Act of 2012, is
a special statute designed to suppress a
particularly pernicious mischief in society,
and that is, the engagement of children in
sexual activities and their exploitation. A
child is defined under Section 2(d) of the
Act of 2012, as any person below the age
of
eighteen
years.
The
collective
conscience of the society and the legislative
mandate whereby it has been translated into
a law, are firm in their resolve to suppress
sexual exploitation of children or their
involvement in such activities. This being
the purpose of the Act of 2012 and the
object of its enactment, it ill lies in the
mouth of the informant, or even the victim,
to come up with a plea that they intend to
compromise
the
prosecution.
The
prosecution is at the behest of the State and
the informant or the prosecutrix have no
say in it at all. Otherwise too, the
prosecutrix was a minor at the time when
the incident happened and it is not open to
her to make small of an offence against
society, merely because she was the victim
of it.

8. This question has engaged the
attention of the Supreme Court in Aparna
Bhat and others v. State of Madhya
Pradesh and another, 2021 SCC OnLine
SC 230, where the following directions
have been issued by their Lordships of the
Supreme Court:

 "44.
Having
regard
to
the
foregoing discussion, it is hereby directed
that henceforth:

(a) Bail conditions should not
mandate, require or permit contact between
the accused and the victim. Such conditions
should seek to protect the complainant
from any further harassment by the
accused;

(b) Where circumstances exist for
the court to believe that there might be a
potential threat of harassment of the victim,
or upon apprehension expressed, after
calling for reports from the police, the
nature of protection shall be separately
considered and appropriate order made, in
addition to a direction to the accused not to
make any contact with the victim;

(c) In all cases where bail is
granted,
the
complainant
should
immediately be informed that the accused
has been granted bail and copy of the bail
order made over to him/her within two
days;

(d) Bail conditions and orders
should avoid reflecting stereotypical or
patriarchal notions about women and their
place in society, and must strictly be in
accordance with the requirements of the Cr.
PC. In other words, discussion about the
dress, behavior, or past ?conduct? or
?morals? of the prosecutrix, should not
enter the verdict granting bail;

(e) The courts while adjudicating
cases involving gender related crimes,
should not suggest or entertain any notions
(or
encourage
any
steps)
towards
1612 INDIAN LAW REPORTS ALLAHABAD SERIES
compromises between the prosecutrix and
the accused to get married, suggest or
mandate mediation between the accused
and
the
survivor, or
any
form
of
compromise as it is beyond their powers
and jurisdiction;

(f)
Sensitivity
should
be
displayed at all times by judges, who
should
ensure
that
there
is
no
traumatization of the prosecutrix, during
the proceedings, or anything said during the
arguments, and

(g) Judges especially should not
use any words, spoken or written, that
would undermine or shake the confidence
of
the
survivor
in
the
fairness
or
impartiality of the court."

 (Emphasis by Court)

9. This Court had occasions to consider
in Pravin Kumar Singh and others v. State
of U.P. Thru. Prin. Secy. Home Deptt. and
another, 2023 SCC OnLine All 131, the
issue whether prosecutions under the Act of
2012 can be quashed on an application under
Section 482 Cr.P.C founded on a compromise.
In Pravin Kumar Singh (supra) it was held
by Hon?ble Ajai Kumar Srivastava-I, J. thus:

"14. So far as the question of
quashing of criminal proceeding of S. T.
No.20 of 2014 "State vs. Pravin Kumar Singh
and others" arising out of Case Crime No.345
of 2013, under Sections 376, 363, 366, 504,
506 1.P.C. and 3/4 POCSO Act, is concerned,
Hon'ble Supreme Court in Narinder Singh and
others vs. State of Punjab and another reported
in (2014) 6 SCC 466, has specifically held that
the matter under Section 376 I.P.C. is also
such an offence, which, though committed in
respect of a particular victim, cannot be termed
to be a private dispute between the parties. It
has serious adverse societal effect. Therefore,
any proceeding on the basis of alleged
compromise of the accused vis-a-vis the
victim cannot be quashed. Hon'ble Apex Court
in State of Madhya Pradesh vs. Madanlal
reported in (2015) 7 SCC 681 while repelling
the acquittal on the basis of compromise in the
matter pertaining to Sections 376 read with
511 I.P.C., has placed reliance upon principles
laid down by three-Judge Bench in Shimbhu
vs. State of Haryana reported in (2014) 13
SCC 318."

10. It has been held by the Punjab and
Haryana High Court in similar terms in
Nardeep Singh Cheema @ Navdeep
Singh Cheema v. State of Punjab and
others, CRM-M-2270-2020, decided on
07.09.2022. I also had occasion to consider
this issue in Om Prakash v. State of U.P.
and another, 2023 SCC OnLine All 93,
where it was held that the proceedings
under Section 376 I.P.C. and POCSO Act,
cannot be quashed on the basis of a
compromise between the accused and the
victim.

11. On the conspectus of above facts, I
do not find any good ground to quash
proceedings of the ongoing trial.

12. This application is, accordingly,
rejected.
----------
(2023) 5 ILRA 1612
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 7730 of 2016

Dr. Ashok Kumar Tomar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents