POCSO-7

Supreme Court stands firm on POCSO cases, overturns high court decision. Why do High Courts lean towards “compromises” in POCSO cases? SC reprimands Calcutta HC for suggesting decriminalisation of consensual sex.

In a landmark judgement on the quashing of POCSO cases by the Calcutta High Court, the Supreme Court ruled that even if the accused and the victim (who has now attained majority) were to come out with a settlement, the High Court could not have quashed the prosecution. The SC pulled up the HC while taking suo moto action in Writ Petition (C) No. 3 of 2023 in In Re: Right to Privacy of Adolescents.

On August 20, the Supreme Court slams the Calcutta High Court over the objectionable observations made by the Division bench of the High Court while passing the impugned judgement against the conviction of accused charged under Section 6 of the POCSO, Act 2006 and Sections 363/366 and clause (n) of sub-section (2) and sub-section (3) of Section 376 of the IPC, 1860. 

The High Court of Calcutta vide its impugned judgement dated October 18, 2023, set aside the conviction of the accused under the provisions abovementioned, where the High Court observed that while achieving ostensible objectives to protect all children below 18 years from sexual exploitation, the law’s unintended effect has been the deprivation of liberty of young people in consensual relationships. 

The Supreme Court of India, expressed its displeasure with the observations and reasoning adopted by the High Court while passing the impugned judgement. 

Brief background of the case

The victim, a girl who was fourteen years old at the time of the incident. The victim’s mother lodged a First Information Report (FIR) on May 29, 2018. The victim’s mother stated in her complaint that the victim, who was her minor daughter, escaped from her home at 5:30 p.m. on May 20, 2018 without informing anyone. On inquiry, it was found that the accused enticed her to leave her house. The accused did so with the help of his two sisters. The victim’s mother repeatedly visited the house of the accused and requested him to facilitate the return of her daughter. However, the victim did not come back. A female child was born to the victim.

The accused was arrested on December 19, 2021. The chargesheet was filed on January 27, 2022 against the accused for the offences for which he was convicted. Initially, the accused was charged with Section 9 of the Prohibition of Child Marriage Act, 2006. Later, the Ld. Special judge under the POCSO Act found that there was no evidence of marriage between the victim and the accused and the charge under Section 9 of the 2006 Act was held as not substantiated.

The Ld. Special Judge, Baruipur, South 24 Parganas, convicted the accused for the offences of punishable under Section 6 of the POCSO Act and Sections 363 and 366 of the Indian Penal Code, 1860.

Appeal against conviction before Calcutta High Court

The accused preferred an appeal before the Calcutta High Court against the Conviction. The Division Bench of the Calcutta High Court on October 18, 2023, vide its impugned judgment held that the offences punishable under Section 363 and 366 of the IPC were not made out and the High Court acquitted the accused for the two offences and while exercising its jurisdiction under Article 226 of the Constitution of India read with Section 482 of the CrPC, 1973 set aside the conviction of the accused for the offences punishable under Section 6 of the POCSO Act and sub-sections 2(n) and (3) of Section 376 of the IPC. The bench observed that the mother of the victim had disowned her and therefore, the victim was continuously residing with the accused along with their minor child.

State of West Bengal’s appeal against judgement/order of the HC

Aggrieved by the judgement and order dated October 18, 2023, passed by a Division Bench of the High court, the State of West Bengal preferred Criminal Appeal No. 1451 of 2024 before the Supreme Court as a suo moto writ petition, in pursuance of directions issued by the Hon’ble Chief Justice of India for challenging the impugned judgement. In the present case, senior counsel Madhvi Divan and Liz Mathew were appointed by the Supreme Court as amicus curia to assist the Court.

Observations of the Supreme Court against High Court’s Decision

The division bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan while setting aside the impugned judgement and order dated October 18, 2023 of the High Court of Calcutta observed that “the division bench has invited a very peculiar concept of “non-exploitative sexual acts” while dealing with the offences punishable under Section 376(2)(n) of the IPC and Section 6 of the POCSO Act. We fail to understand how a sexual act, which is heinous offence, can be termed as non-exploitative”.

“When a girl who is fourteen years old is subjected to such a horrific act, how can it be termed as “non-exploitative”? The bench questioned.

The Bench has also invented a non-existent category of “older adolescents” and lamented about the lack of recognition of the consensual behaviour of older adolescents. The bench added that “We fail to understand this concept of “older adolescents”.”

In relation to the observation made by the High Court that by equating Suo Motu Writ Petition (C) no.3 of 2023 etc. Page 16 of 50 consensual and non-exploitative sexual acts with rape and aggravated penetrative sexual assault, the law undermines the bodily integrity and dignity of adolescents, the SC held that “what is shocking is the observation made in paragraph 23 of the impugned judgment where the High Court observed that while achieving ostensible objectives to protect all children below 18 years from sexual exploitation, the law’s unintended effect has been the deprivation of liberty of young people in consensual relationship”

The SC added that “surprisingly, carved out a non-existing category of romantic cases in the rape cases. While dealing with the offences under the POCSO Act, shockingly, the Court observed that the law undermines the identity of adolescent girls by casting them as victims, thereby rendering them voiceless.”

While expressing the disagreement with the observation of the High Court, the bench said that “the judges ought to have avoided expressing their personal views even assuming that there was some justification for holding the views. While the High Court observed this, it forgot that in the facts of the case, the Court was not dealing with the sexual acts involving adolescents above sixteen years, as the age of the victim was fourteen years and the accused was twenty-five years at the relevant time” 

“The duty of the High Court was to ascertain on the evidence whether the offences under Section 6 of the POCSO Act and Section 376 of the IPC were made out. In view of “sixthly” in Section 375 of the IPC, penetrative intercourse with a woman under eighteen years of age, with or without her consent, constitutes an offence of rape. Therefore, whether such offence arises from a romantic relationship is irrelevant. How can an act that is an offence punishable under the POSCO Act be described as “a romantic relationship”? The High Court went to the extent of observing that the case of criminalisation of a romantic relationship between two adolescents of opposite sex should be best left to the wisdom of the judiciary. The Courts must follow and implement the law. The courts cannot commit violence against the law. The findings and observations in the impugned judgment, except the finding on the applicability of Sections 363 and 366 of the IPC, cannot be sustained” the bench observed.

The division bench while questioning the observation of the High Court, added that “the duty of the High Court was to ascertain on the evidence whether the offences under Section 6 of the POCSO Act and Section 376 of the IPC were made out. In view of “sixthly” in Section 375 of the IPC, penetrative intercourse with a woman under eighteen years of age, with or without her consent, constitutes an offence of rape. Therefore, whether such offence arises from a romantic relationship is irrelevant. How can an act that is an offence punishable under the POSCO Act be described as “a romantic relationship”? 

“The Courts must follow and implement the law. The courts cannot commit violence against the law. The findings and observations in the impugned judgment, except the finding on the applicability of Sections 363 and 366 of the IPC, cannot be sustained” the bench remarked.

Helpless position of the victim

The division bench expressed concerns over the helpless position of the victim in the present case. Amicus Curiae Madhvi Divan emphasised that no opportunity was made available to the girl of fourteen or fifteen years of age to make an informed choice to decide whether to stay with the accused. She did not get any support from her parents and the State machinery when she required it the most. As held by us hereafter, the State machinery failed to act according to the law to take care of the victim. The situation in which she was placed at that time was such that she had no opportunity to make an informed choice about her future. She had no option but to seek shelter where it was provided to her i.e. in the house of the accused. In any event, it is doubtful whether she could have made an informed choice at the age of fourteen or fifteen.

Decision of the apex court

A division bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan while setting aside the impugned judgement and order dated October 18, 2023 of the High Court of Calcutta, held that “the accused is guilty of the offences punishable under sub-sections (2)(n) and (3) of Section 376 of the IPC and Section 6 of the POCSO Act. The issue regarding sentencing will be considered after the committee’s report is received”. 

The bench held that “this extraordinary situation was created because the State machinery did not follow the provisions of law starting from sub-section (6) of Section 19 of the POCSO Act. The importance of rehabilitation of the victims of offences under the POCSO Act, which is a mandatory requirement of law, is being overlooked by all stakeholders. Perhaps, at levels, there is a need for introspection and course correction. We include even the Judiciary in that”.

The Court, while setting aside the impugned judgement and order of the High Court, passed the order that the Government of West Bengal should constitute a committee of three experts, including a clinical psychologist and a social scientist, to assist the victim in making an informed choice regarding her future. This committee will also review the support offered by the State to the victim and her child. The Court directed the State to provide details of the support measures to the committee and ensure that the committee’s recommendations are submitted by October 18, 2024.

The Supreme Court emphasised the need for introspection and course correction by all stakeholders, including the judiciary, in handling cases under the POCSO Act. The Court noted the failure of the State machinery in providing timely support and protection to the victim, which had led to this extraordinary situation.

This simple rule of law is not understood by some presiding judges of the POCSO court including the POCSO judge of Puri district and for those who operated the extortion and Paisa Vashooli Racket as the POCSO judge of Puri District acquitted the accused of the G.R.Case No. 61 of 2017 ion Dt. 13-09-2024 and police, officers of the court and others helped him to achieve this task.

There is no smell of medical report in the judgement.

There is no evidence of the marriage between the victim & accused.

The charge sheet was filed after three years. and after the victim minor girl attains the majority and after the compromise between the victims and accused and after the marriage between the accused and the victim girl.

Copy paste order has been passed mentioning the crime of two police stations the Pipili and Khumbharpada PS

The judgement contained the reference of two FIR the FIR. No.271 of 217 and 73 of 2019

The judgement also contains the two court case No. 38/102 of 2023/2020 which are quite confusing.

It seems that the section officer is passing this order as the same has bee uploaded without any signature so that on later stage the judge can denied his deed.