Plea Against Kerala HC Order Recalling Judgment Quashing POCSO Case Citing Marriage: Supreme Court Issues Notice

The Supreme Court issued notice in Special Leave Petition filed against a Kerala High court order recalling its earlier judgment quashing rape and child sexual assault charges against various accused.

The High Court bench presided by Justice K. Haripal had initially quashed the proceedings against on the grounds of the marriage of the accused to the victims. Later, the judge recalled these orders taking note of the Supreme Court judgment in Gian Singh v. State of Punjab  held heinous and serious offence offences like murder, rape, and other such offences cannot "be fittingly quashed even though the victim or victim's family and the offender have settled the dispute".

Challenging this recall order, the accused approached the Apex Court contending that once the orders are pronounced and signed by the same court, the court becomes functus officio and it cannot, in any way, alter or review its own judgment except to correct a clerical or arithmetical error. There is a specific bar under Sec. 362 of the Code of Criminal Procedure, 1973 will be attracted, once the judgment or the final order disposing a case has been signed and pronounced by a court, the plea before the Supreme Court reads.

The Special Leave Petition came up for admission before the bench comprising Justices Vineet Saran and Dinesh Maheshwari. The court issued notice on the prayer for interim relief as well as on the SLP.

In this case, the accused had moved the High Court stating that he married the prosecutrix and that the matter was settled between the parties. It was also averred that he and the prosecutrix, who has attained majority, are now living as husband and wife. In support of the petition, he produced affidavits filed by the prosecutrix and the complainant stating that they have no objection to the quash on proceedings. Allowing the petition, the Court opined that continuing the proceedings would be futile, because the prosecutrix and the complainant, the material witnesses would not support the case.

"When the dictum laid down by the Hon'ble Supreme Court is not considered, it is a serious matter and therefore, there is no legal impediment in recalling the orders in the above Crl. M. C.s. The orders allowing the Crl. M.C.s are hereby recalled, suo motu",  Justice Haripal observed in his order recalling the earlier judgment.

Case: XXX vs. State of Kerala [ SLP 5362/2021 ]
Counsel for petitioner: AOR Vaibhav Niti, Adv Rajit, Adv Abraham Mathan, Adv Dheeraj Rajan. C.

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