R/SCR.A/11576/2023 ORDER DATED: 10/09/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 11576 of 2023 ========================================================== HITESHBHAI JAYANTIBHAI THAKOR Versus STATE OF GUJARAT & ANR. ========================================================== Appearance: MR HEMANT B RAVAL(3491) for the Applicant(s) No. 1 Ms MEGHA CHITALIYA, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 10/09/2025 ORAL ORDER 1. By way of present petition under Articles 226 and 227 of the Code of the Constitution India and section 528 of BNSS, 2023 the petitioner has sought quashing of impugned FIR being CR No.11215007220064 of 2022 registered with Borsad Rural Police Station Anand, under Sections 363, 366, 376(2)(N) (3) of the IPC and Section 6, 18 of the POCSO Act as well as other consequential proceedings arising out of the same. 2. Heard learned advocate for the petitioner and learned APP for respondent No.1 – State of Gujarat. 3. Going through the impugned FIR, it appears that on 11.02.2022, the complainant and his wife were at Kasari village for work. Around 1:00 a.m. on 27.02.2022, he received a call from his son, who informed him that while sitting on the terrace at about 12:30 a.m., he noticed that the victim, who had been sleeping inside, was missing. The R/SCR.A/11576/2023 ORDER DATED: 10/09/2025 complainant and his wife rushed home on their motorcycle and confirmed the same. A search was carried out with the help of a villager and his brother-in-law, but the victim was not found. It was thereafter revealed that the victim had a relationship with the accused. On the following morning, it was learnt that the accused had not returned home and that his mobile phone was switched off. The complainant suspects that the accused enticed and kidnapped the victim from his lawful guardianship with the intent to commit a sexual offence. A complaint was accordingly lodged, supported by the victim’s birth certificate. 4. Learned advocate for the petitioner has submitted that amicable settlement has been arrived at between the parties and complainant has filed an affidavit affirming the factum of settlement and hence now, no purpose would be served in continuing with such proceedings and hence, has sought quashing of the proceedings on the ground of settlement and submitted that there is no bar to quash the proceedings based on settlement as the settlement is for the benefit of the minor victim and to continue with the impugned proceedings even after settlement would be a futile exercise. It is further submitted that the victim has since married another man, and the accused has also married another woman. Proceeding further with the matter may adversely affect their respective marital lives. In view of the above, he has requested to allow the present petition and quash and set aside the impugned proceedings. 5. Learned APP has vehemently opposed the petition, R/SCR.A/11576/2023 ORDER DATED: 10/09/2025 contending that there is no justification to allow it merely on the ground of settlement, since the offences in question are non-compoundable and, being offences against the State, cannot be quashed on the basis of a private compromise. 6 . Insofar as question of compromise is concerned, it is needless to say that the present offence is registered for the offences punishable under Sections 363, 366, 376(2)(N) (3) of the IPC and Section 6, 18 of the POCSO Act. Considering the aforesaid fact, it transpires that the offences alleged are not only against a person but against the State. Hence, merely because compromise took place between the parties is not a ground to exercise powers under Section 482 of the CrPC. In this regard reference is required to be made to the decision of Hon’ble Supreme Court in the case of Shimbhu and Another vs. State of Haryana reported in (2014) 13 SCC 318 wherein it has been held as follows: “Rape being an offence against society, factors pertaining to accused and victim, such as compromise arrived at between parties, old occurrence and long pendency of criminal trial, subsequent marriage of victim and having children, as also caste, creed, religion, socio-economic status, etc. not relevant to constitute adequate and special reasons and that subsequent compromise between parties whereby victim having no objection to reduction of accused’s sentence to period already undergone, may often be an outcome of pressure and her compulsion and it would be unsafe to consider it a ground for reducing the sentence under the proviso and that rape is a non-compoundable offence and courts should not take softer view while awarding sentence for heinous crime life rape and held that proviso being an exception clause should be construed strictly.” R/SCR.A/11576/2023 ORDER DATED: 10/09/2025 7. As regards the contention of the learned advocate for the petitioner that the victim and the accused have since entered into separate marriages, it is observed that such a circumstance cannot be a ground to consider the case. Only if the victim and the accused had married each other, the matter could have been viewed differently. 8. C onsidering the statement and object, the reason of enactment of POCSO Act is that several child has inalienable human right to live with dignity, grow-up and develop in an atmosphere conducive to mental and physical health, to be treated with equality and not to be discriminated. The right to protection of privacy also includes the child right. It is a constitutional guarantee and basic human right to live with dignity. Even, the directive policy of the State policy castes an obligation on the State to ensure that children are given an opportunity and facility to develop in healthy manner and in a condition of frame and dignity. Considering the aforesaid fact, to provide free fair, secure and conducive atmosphere for development of child and to protect the children from sexual exploitation with special purpose Act being produced. Once it is admitted and undisputed fact that the petitioner is major, though by taking undue advantage of tender age of victim, who is minor, she is exploited by the present petitioner. Considering the aforesaid fact, as the petitioner was able to exploit the victim by influencing on her and taking undue advantage of her tender age, now he cannot claim that he is innocent and with consent he entered into relationship with the minor victim. In case of minor, it is R/SCR.A/11576/2023 ORDER DATED: 10/09/2025 needless to say that consent has nothing to do and consent is insignificant. Hence, the argument that relationship of the petitioner with the minor victim was with consent is also not acceptable. Hence, merely because mother of minor victim i.e. de facto complainant has filed an affidavit stating that the dispute is settled is not a ground to quash and set aside the impugned proceedings. 9 . The prime consideration under the POCSO Act is victim is minor and is protected under the law of land. Once it is undisputed and admitted fact that the petitioner has taken undue advantage of the tender age of the victim and eloped with her and stayed with the victim and committed the offence, the object of the POCSO Act was not merely in furtherance of this country's commitment to international instruments, but its resolve to and attempted at creating a world as secure and as free from fear, for the most innocent and vulnerable section of its citizens, i.e., children and young adults. Behaviour - physical, verbal, and non- verbal, ranging from what discomfits a child to as horrifying as rape and physical sexual abuse have been criminalized. Special mechanisms to provide access to the justice delivery system, and ensure speedy justice, have been devised. Yet, a society’s commitment to such a cause does not cease by mere enactment of any law, but its willingness, and those governing and administering it, to create and ensure effective overall frameworks which support and strengthen its institutions. It is necessary to consider whether the power conferred by the High Court under section 482 of the CrPC is warranted. Page 5 of 8 R/SCR.A/11576/2023 ORDER DATED: 10/09/2025 10. Insofar, argument of hostile witness is concerned, merely because witness has turned hostile and settlement took place is not a ground to allow the present petition. Considering the provisions of the POCSO Act, merely witness being turned hostile is not a ground to acquit or record acquittal to the accused. The prosecution has ample power to put leading question to the witness and if the testimony of such witness lends corroboration with other reliable evidence produced on record and considering the attending circumstances, Court may appreciate the evidence. This is very early stage to come to conclusion that if the witnesses turn hostile then it would be a futile exercise on the part of the Court to continue with such proceeding. Nonetheless, in the present case, offences are under the Special Act and it would be worth to refer to provision under Sections 29 and 30 of the POCSO Act, which read as under: “29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. 30. Presumption of culpable mental state.- 1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. R/SCR.A/11576/2023 ORDER DATED: 10/09/2025 (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.” 11. It is also appropriate to refer to the recent decision of the Hon’ble Supreme Court in the case of Ramji Lal Bairwa vs. State of Rajasthan reported in (2025) 5 SCC 117 wherein it is observed and held in paragraph No.36 as under: “36. Thus, in unambiguous terms this Court held that before exercising the power under Section 482 CrPC the High Court must have due regard to the nature and gravity of the crime besides observing and holding that heinous and serious offences could not be quashed even though a victim or victim’s family and the offender had settled the dispute. This Court held that such offences are not private in nature and have a serious impact on the society. Having understood the position of law on the second question that it is the bounden duty of the court concerned to consider whether the compromise is just and fair besides being free from undue pressure we will proceed to consider the matter further.“ Thus, considering the larger public interest of the society, no case is made out to entertain the present petition. 12. Further, in the case of Daxaben vs. State of Gujarat reported in 2022 SCC OnLine (SC) 936, the Hon’ble Supreme Court in paragraph No.40 has observed and held as under: “40.In Criminal Jurisprudence, the position of the complainant is only that of the informant. Once an FIR and/or criminal complaint is lodged and a criminal case is started by the State, it becomes a matter between the State and the accused. The State has a duty to ensure that law and order is maintained in society. It is for the state to prosecute offenders. In case of grave and serious non- compoundable offences which impact society, the R/SCR.A/11576/2023 ORDER DATED: 10/09/2025 informant and/or complainant only has the right of hearing, to the extent of ensuring that justice is done by conviction and punishment of the offender. In view of the above, as the “culpable mental state” includes the intention, motive and knowledge of the fact and based on belief or reason to believe a fact. In that event, it is burden on the part of the accused to rebut the said presumption. Hence, merely on the basis of settlement, as a matter of right, the petitioner cannot claim to quash and set aside the proceedings. 1 3 . In wake of aforesaid discussion, present petition being devoid of any merit stands dismissed. However, the learned trial Court is directed to expedite the trial the trial on its own merits without being influenced by the observations made in this order, as the observations made herein are tentative in nature. (HASMUKH D. SUTHAR,J) ALI Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: ISTAYAK ALI(HC01093), PRIVATE SECRETARY, at High Court of Gujarat on 12/09/2025 18:06:12