Madras HC Quashes POCSO Case Against Woman Who Alleged Mother & Sister Illegaly Retained Her Daughter's Custody, Orders Child To Be Returned

The bench of Justice MS Ramesh and Justice Sunder Mohan were hearing an HCP filed by a woman for producing her 5-and-a-half-year-old daughter. The woman had alleged that her elder sister and mother were refusing to hand over the daughter's custody to her.

After granting custody to the woman, the court went a step further and examined the POCSO proceedings initiated against her on the complaint of the sister and the mother. Noting that a scheming attempt had been made by the sister and mother to get custody of the minor child, the court observed that there was not an iota of legally permissible evidence against the woman to proceed under the POCSO Act.

“There also arises a strong suspicion that a scheming attempt may have been made by the 3^rd [sister] and 4^th [mother] respondents to appropriate the custody of the child, by roping in the petitioner as an accused for the offences under the POCSO Act, which would be gross abuse of the due process of law. In these circumstances and in order to secure the ends of justice, we are constrained to invoke our powers under Article 226 of the Constitution of India to quash the criminal proceedings, as against the petitioner herein,” the court observed.

The woman informed the court that after getting employed in Chennai, she had temporarily left her daughter in the custody of her mother and used to visit her daughter on the weekends. Later, her husband was arrested by the police on a complaint by the petitioner's sister alleging that he had sexually assaulted the daughter. Following this, the petitioner's sister and mother continued to retain custody of the child prompting the petitioner to file the habeas corpus petition.

The petitioner informed the court that her sister, who was a divorcee and had no children of her own, had colluded with her mother and filed a false case to retain the custody of the child, with whom she had developed an emotional connection.

As a temporary measure, the court, after interacting with the child, ordered her custody to be handed over to the petitioner. The petitioner layer informed the court that pending proceedings, the police had hurriedly filed a final report accusing her of abetting the offence.

The police informed the court that the petitioner was added as an accused based on a complaint received by the sister and mother alleging that she knew about the offence and allowed the injustice to continue. The sister and mother also submitted that the child was happy with them and that it would not be appropriate to give custody to the petitioner who had allowed the offence to continue even after having knowledge of the same.

The court, on perusing the materials, concluded that the case against the petitioner was an afterthought and it was imperative for the court to interfere with the same, exercising powers under Article 226 of the Constitution. The court criticised the investigating officer for hurriedly proceeding with the investigation despite knowing that the court was adjudicating the custody of the child.

“we express our discontentment to the manner in which the Investigating Officer in this case had hurriedly proceeded with the investigation and a final report was filed, when the issue of custody of the child was being adjudicated by us. We do not intend to be a mute spectator to this gross irregularity in the conduct of the Investigating Officer in totally disregarding the pendency of the HCP before us and file a final report, which, if accepted on its face value, would defeat the entire case of the petitioner before this Court in the HCP,” the court said.

Thus, to secure the ends of justice, the court deemed it necessary to invoke its powers under Article 226 of the Constitution and quashed the criminal proceedings against the petitioner. The court also emphasised that the proceedings against the petitioner's husband would continue per law.

Counsel for the Petitioner: Mr.Abudu Kumar Rajarathinam, Senior Counsel for Mr.M.Suresh

Counsel for the Respondent: Mr.A.Gokulakrishnan Additional Public Prosecutor, Mr.S.Prabakaran, Senior Counsel for Ms.C.Uma

Citation: 2024 LiveLaw (Mad) 325

Case Title: Dharani v State

Case No: H.C.P.No.2505 of 2023