The Supreme Court corrected the Calcutta High Court on Tuesday (August 20) for stating in a decision that the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) should
be changed to make illegal consensual sexual actions with adolescents over the age of sixteen. The Supreme Court also voiced displeasure of the High Court's recommendation
that an exception be made for 'non-exploitative' sexual actions by older teens.
The High Court issued these remarks when overturning a man's (25-year-old at the time of the offence) conviction for rape of a 14-year-old minor girl based on a ‘settlement’ between the defendant and the victim. A bench comprising Justice Abhay Oka and Justice Ujjal Bhuyan upheld the man's conviction under Section 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
How can a POCSO offence be considered 'romantic' The Court was taken aback by the High Court's description of the horrendous sexual offence committed against the juvenile
girl as ‘non-exploitative’ and ‘romantic relationship’. The High Court's role was to determine whether the charges under Section 6 of the POCSO Act and Section 376 of the IPC were proven. According to ‘Sixthly’ in Section 375 of the IPC, penetrative intercourse with a woman under the age of eighteen, with or without her permission, constitutes rape. As a result, whether such offence stems from a romantic relationship is irrelevant. How can an offence criminal under the POSCO Act be referred to as 'a romantic relationship'
The Court further questioned the High Court's conclusion that 'non-exploitative and consensual' activities among minors should be exempt from the POCSO Act. The Supreme Court expressed surprise at the High Court's remarks, stating "The High Court determined that by comparing consensual and non-exploitative sexual actions with rape and aggravated penetrative sexual assault, the statute violates adolescents' bodily integrity and dignity. The High Court was not asked to debate the merits
and demerits of current statutes. What is shocking is the High Court's observation in paragraph 23 of the impugned judgment that, while achieving presumed objectives to protect all children under the age of 18 from sexual exploitation, the law's unintended
consequence has been the deprivation of liberty of young people in consensual relationships.Courts must uphold the law, not violate it."
The Supreme Court also rejected the High Court's recommendation that the POCSO Act be changed to decriminalise consensual sexual conduct involving minors aged sixteen and older. “While hearing an appeal against the decision of conviction, the High Court was not required to make the observations mentioned above. Perhaps these were topics that only specialists might have debated in a separate forum. The judges should have avoided revealing their personal opinions, even if they had some basis for doing so. While observing this, the High
Court forgot that under the facts of the case, the Court was not dealing with sexual actions involving adolescents beyond the age of sixteen, as the victim was fourteen years old and the
accused was twenty-five years old at the time"
Leaving aside the High Court's opinions, the ruling authored by Justice Oka said "The High Court went so far as to say that the situation of criminalising a romantic relationship between two youths of the opposite sex should best be left to the Judiciary's
discretion. The courts must obey and apply the law. Courts cannot use violence to enforce the law. Except for the conclusion on the applicability of Sections 363 and 366 of the IPC, the
findings and remarks in the impugned judgment cannot be supported. Conviction could not have been quashed based on settlement"
In an appeal filed by the State of West Bengal, the Court reversed the High Court's order to overturn the man's conviction. The High Court invoked section 482 of the CrPC to overturn
the conviction, citing the victim's continuous cohabitation with the accused and a lack of parental assistance.
Disapproving of the High Court's approach, the Supreme Court said "Therefore, in view of the settled position of law, in the facts of the case, 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. As previously stated, in the facts of the case, the accused was not an adolescent, but he was approximately twenty-five years old on the day of the 4 offence, while the victim was only fourteen years old. When rape and aggravated penetrative sexual assault are committed, the High Court cannot acquit an accused whose guilt has been proven by exercising its jurisdiction under Article 226 of the Indian Constitution and/or Section 482 of the Criminal
Procedure Code.”The Court also overruled the High Court's controversial statement that young girls should suppress their sexual impulses.
Previously, On May 29, 2018, the victim's mother filed an FIR, alleging that her daughter had gone missing from their house. The inquiry revealed that the accused, with the help of his
two sisters, induced the victim to leave her home. The victim later gave birth to a kid who is the accused's biological daughter. The individual was convicted by a Special Judge under Section 6 of the POCSO Act, as well as Sections 363 and 366 of the IPC. He was sentenced to 20 years of severe jail and a Rs. 10,000 fine. Given the penalty for the POCSO Act offence, the Special Judge did not impose a separate punishment for Section 376 of the IPC
charges.
On October 18, 2023, the High Court discharged him of accusations under Sections 363 and 366 of the IPC, concluding that the prosecution had failed to sustain these charges.
Furthermore, the HC used its powers under Article 226 of the Constitution and Section 482 of the CrPC to reverse the conviction for the offence under Section 6 of the POCSO Act and
sub-sections 2(n) and (3) of Section 376 of the IPC.
“We fail to understand how a sexual act, which is a 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 Supreme Court observed.
The Supreme Court overturned the HC's decision and reinstated the accused's conviction for crimes under Section 6 of the POCSO Act and Sections 376(2)(n) and 376(3) of the IPC. The
Court confirmed the accused's acquittal on charges under IPC Sections 363 and 366.
