The Protection of Children from Sexual Offences act, 2012 (POCSO) corresponds to rules having the main objective of protecting children from various sexual offenses. Section 2 of the POCSO act defines a ‘child’ as someone who hasn’t yet attained the age of 18 years. However, the law is silent on the age of the perpetrator. This ‘irregularity’ has caused a slew of problems in ensuring justice to the ‘offenders’ who were under the age of 18 themselves when the crime under the POCSO act was alleged. In the absence of relevant legal provisions, only the judicial pronouncements can serve as benchmark as what could be done in case of this ‘legal anomaly’?
Sabari Vs. Inspector of Police is the first landmark in this regard. In this case the concept was first originated as what ought to be done in a POCSO case when the perpetrator is an adolescent? In the case, the conviction was set aside for the reasons of involvement of consent in the romantic relationship. The court went on to suggest that such relationships are the result of ‘mutual innocence and biological attraction’ and they cannot be construed as an ‘unnatural one or alien’ in any sense or form. The scope of POCSO act isn’t broad enough to convict someone who doesn’t have mental capacity to understand the repercussions of his actions.
1. Sabari Vs. Inspector of Police, Belukurichi Police Station and Ors.
1. In the present case, a criminal appeal was filed by the accused/appellant in the High Court of Madras, against the order of Sessions Court, which convicted the appellant under Section 363 of IPC [Punishment for kidnapping] and Section 5(1) [aggravated penetrative sexual assault] with Section 6 [Punishment for aggravated penetrative sexual assault] of POCSO Act, 2012.
2. The case made by the prosecution is as follows:
A. The appellant was in a relationship with the victim who was 17 years of age. The appellant by inducing the victim kidnapped her from the lawful custody of her grandparents and later repeatedly committed sexual assault on her. The victim was found after a lapse of 6 months along with the appellant.
B. The prosecution examined 24 witnesses in total. The headmaster (PW.13) deposed that the birth date of the victim is 10th July 1997 which alluded that she was a minor at the time of the offense. The doctor (PW.16) conducted a medical examination and deposed that the hymen of the victim has been ruptured and she could have had sexual intercourse.
C. Based on the evidence of witnesses, the trial court convicted the appellant.
3. The counsel on behalf of the appellant argued that:
A. The trial court has greatly erred in its judgment and convicted the appellant on the unwarranted presumption in favour of the prosecution.
B. The counsel argued that no material evidence was found on the victim girl or the accused. The counsel further argued that the doctor had only stated that there is a ‘likelihood’ of sexual intercourse as no sperm was found on the private parts of the victim. Moreover, the victim has denied all the allegations of kidnapping. The trial court has ignored all the inconsistencies in the evidence i.e. evidence of the victim and other important witnesses i.e. father of the victim.
1. The court after hearing both parties went into summarizing undisputed facts:
A. The court first commented on the most essential part of the case that is evidence by the victim herself. The court stated that as the victim has become hostile and ‘she hasn’t supported the case of the prosecution.’ Nothing could be obtained, implicitly or explicitly from her that could establish the charges levied against the appellant. The court went on to say that none of the family members has given ‘direct evidence’ in the case as not even the grandparents have seen the accused and appellant together. This is just a ‘presumption’ on behalf of the relatives about the kidnapping and sexual assault of the victim.
B. The court further stated that the fact that the accused and the victim were living together can’t be established as the main witnesses have turned hostile and no one can sufficiently depose that they were living together. Due to the absence of this crucial fact, the case of the prosecution ‘does not hold water at all.
C. On the decision of the trial court, the court agreed with the arguments of the counsel for the appellant and stated that ‘the trial court appeared to be too eager to convict the appellant/accused regardless of the weight of evidence that was made available before it’.
2. Finally, the court allowed the criminal appeal and set aside the conviction of the appellant. But when the case was taken up for hearing the Court also took cognizance of the growing incidences of offenses under the POCSO Act when ‘offenses are slapped against teenagers, who fall victim of the application of the POCSO Act at a young age without understanding the implication of the severity of the enactment.’
3. After considering various reports, the court stated that ‘majority of cases are due to relationships between adolescent boys and girls and in case of any love affair between a girl and a boy, where the girl happened to be 16 or 17 years old, either in the school final or entering the college, the relationship invariably assumes the penal character by subjecting the boy to the rigors of POCSO Act.'
4. Commenting on the nature of such relationships the court stated that, such relationships are the result of ‘mutual innocence and biological attraction’ and they cannot be construed as an ‘unnatural one or alien’ in any sense or form. The court further noted that, although a girl under 18 years of age might have been capable of consenting to a relationship due to sufficient mental maturity, the provisions of the POCSO act will still attract, warranting severe imprisonment of 7/10 years.
5. The court went on to suggest that ‘the definition of 'Child' under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18’ and any ‘consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act’. The ‘sexual assault’ can be tried under more ‘liberal provision’, which can be introduced in the Act itself and to distinguish the cases of teenage relationships after 16 years, from the cases of sexual assault on children below 16 years.
The next case of Vijayalakshmi and Ors. Vs. State Rep. By The Inspector of Police, All Women Police Station, Erode and Ors. is in line with the case of Sabari V state however the perpetrator in the present case was in his early 20s. The present case dealt with the question ‘whether offences under POCSO act compoundable when the victim and the accused has reached compromise?’
The court went on to explain that a large number of cases registered under the POCSO Act seems to be arising based on‘complaints registered by the families of adolescents and teenagers who are involved in romantic relationships with each other’, which never was the objective of the act as it was brought into force for the protection of children from sexual assault and allied offenses in accordance to Article 15 of the Indian Constitution and Convention on the Rights of the Child. The court set aside the conviction.
2. Vijayalakshmi and Ors. Vs. State Rep. By The Inspector of Police, All Women Police Station, Erode and Ors.
1. A criminal appeal was filed in the High Court of Madras, to quash the proceedings pending in the court of Sessions Judge, Mahila Court Erode. The appeal was filed by the victim herself/appellant herein and the de facto complainant, to quash the proceedings against the accused who was facing trial in the above-mentioned court under Section 366 [Kidnapping, abducting or inducing woman to compel her mar-riage, etc.]of the Indian Penal Code, 1806, Section 6 [Punishment for aggravated penetrative sexual assault] of the Prevention of Child from Sexual Offences, 2012 and Section 9 [Punishment for male adult marrying a child] of the Prohibition of the Child Marriage Act, 2006
2. The court before hearing the arguments of the parties noted the material facts of the appeal:
A. The court noted that ‘from the petition of the victim it is clear that the victim is known to the accused and they were in love and they ultimately decided to get married.' The court also noted that the ‘1st Petitioner (father of the victim) wants her daughter to get married and that the same is getting delayed due to the criminal proceedings, thereby only causing more mental agony to the Petitioners.’
B. The father also did not support the case of the state and was treated as a hostile witness for the same. The mother of the victim requesting quashing of proceedings has stated that ‘let bygones be bygones, she wants her daughter to get married and settle in life.’
3. The prosecution argued that, although the parties want to enter into a compromise, this Court should take note of ‘seriousness of the offense and whether an offense of this nature can be quashed on the ground of compromise between parties.’
1. The courts while considering the merits of the arguments, reiterated the judgment in the case of Sabari v. Inspector of Police due to the similarity of the cases.
2. The court, by following the principles derived in the case of Sabari v. Inspector of Police questioned the nature and scope of the POCSO act and stated- ‘it is imperative for this Court to draw the thin line that demarcates the nature of acts that should not be made to fall within the scope of the Act, for such is the severity of the sentences provided under the Act, justifiably so, that if acted upon hastily or irresponsibly, it could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous.’
3. The Court noted that a large number of cases registered under the POCSO Act seems to be arising based on ‘complaints registered by the families of adolescents and teenagers who are involved in romantic relationships with each other’, which never was the objective of the act as it was brought into force for the protection of children from sexual assault and allied offenses in accordance to Article 15 of the Indian Constitution and Convention on the Rights of the Child. The Act never intended to bring within its scope or ambit, ‘cases of the nature where adolescents or teenagers involved in romantic relationships are concerned.’
4. Further noting the nature of the offense and relationship between the accused and the court stated that ‘an adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop, should essentially receive the support and guidance of their parents and the society at large.’ If the adolescent boy is sent to prison for acts whose gravity he never understood, will be prosecuted for his whole life.
5. The court went on to suggest that the legislature must work to understand such relationships and bring in necessary amendments to the law to keep pace with changing societal requirements.
6. The court then dealt with the question of whether the proceedings in the POCSO act can be quashed as the charges levied are non-compoundable offenses. The court took note of the judgments of the honorable Supreme Court in the case of Parbathbhai Aahir @ Parbathbhai Vs. State of Gujarat, and The State of Madhya Pradesh Vs. DhruvGurjar and Another that have provided sufficient guidelines that must be considered while exercising jurisdiction under section 482 Cr. P.C, to quash non-compoundable offenses. The test that has been laid is that: ‘the Court must necessarily examine if the crime in question is purely individual in nature or a crime against the society with overriding public interest’ and ‘the offenses against the society with overriding public interest even if it gets settled between the parties, cannot be quashed by this Court.’
7. In the present case, the court dubbed the offenses as purely personal, stating that ‘the case involves the victim, accused and their respective families only. It involves the future of two young persons who are still in their early twenties. Quashing the proceedings will not affect any overriding public interest in this case and it will pave the way for them to settle down in their life and look for better prospects’.
8. The Court concluded that ‘no useful purpose will be served in continuing with the criminal proceedings and keeping these proceedings pending will only swell the mental agony of the victim girl and her family’. Hence, the court quashed the criminal proceedings against the accused and all remaining petitions were subsequently dismissed.
In the case of Ephina Khonglah Vs. State of Meghalaya the perpetrator was 19 years of age and was involved in a romantic relationship with the victim. The court while granting the bail to the accused gave concurrence to the judgement in case of Vijayalakshmi and Ors. Vs. State Rep. By The Inspector of Police, All Women Police Station, Erode and Ors..
3. EphinaKhonglah Vs. State of Meghalaya
1. In the present case, an appeal was filed in the High Court of Meghalaya, under Section 439 Cr.P.C. [Special powers of High Court or Court of Session regarding bail] r/w Section 31 of POCSO act [Application of Code of Criminal Procedure, 1973 to proceedings before a Special Court] with a prayer to grant bail to the accused.
2. The brief facts of the case are such:
A) An FIR was lodged by the mother of the victim and a complaint was made against the accused who is said to have taken her minor daughter to one place called Nongshyrngan near Bri War Resort and there ‘he had sexually assaulted her and dropped her back to her place of stay.’ However, the said minor daughter has also stated that when the said act was committed, ‘it was with her (minor daughter) consent.’
B) The accused was subsequently arrested and a special POCSO case was registered against him which is now pending before the Special Judge (POCSO), Shillong.
3. The learned counsel for the applicant/accused submitted that there was a relationship between the accused and the victim and both of them were teenagers at that time, the accused is 19 years of age.
4. The counsel for the accused further argued that, due to insufficient maturity, the accused was incapable of ‘understanding the consequences of his actions’ and ‘keeping him incarnated with other inmates will have a daunting effect on his future.’ and the accused has already spent 11 months in judicial custody, where, section 11 of POCSO act stipulates that the trial must be completed within a year which is unlikely in this case.
5. The counsel for the accused relied on judgment in the case of Vijayalakshmi and Ors. Vs. State Rep. By The Inspector of Police, All Women Police Station, Erode and Ors. submitting that ‘many High Courts have taken a lenient view in such cases where the accused involved is a teenager and in this regard, charges under POCSO Act and even conviction was set aside and quashed.’
6. However, the prosecution stated that the judgment cited by the counsel for petitioners will have no bearing in this case as the accused is a major and ‘whether he is 19 years or 40 years would make no difference in the eyes of the Law.’ The counsel further submitted that the ‘provisions of the POCSO Act do not distinguish the severity of the offense whether it is a result of romantic love or otherwise’. The alleged offenses framed are very serious and hence, the accused should not be granted bail.
1. On prima facie perusal of the facts of the case the court accepted that the victim and the accused were in a romantic relationship at that time and ‘there is no denial of the fact that the parties were involved in a physically intimate relationship resulting in the lodging of the FIR by the Complainant’.
2. The court then went on to consider the judgment of the honourable Supreme Court in the case of Ram Govind Upadhyay v. Sudarshan Singh where the Supreme Court explained the discretion of the Court while granting bail under Sec. 439 Cr.P.C. - ‘Grant of bail though being a discretionary order-but, however, calls for the exercise of such a discretion in a judicious manner and not as a matter of course’.
3. The court also accepted the argument of the counsel for the accused w.r.t judgment in the case of Vijayalakshmi and Ors. Vs. State Rep. By The Inspector of Police, All Women Police Station, Erode and Ors. and accepted the reasoning that the case is of similar nature as the accused in the aforementioned case was also a major.
4. Without going into the merits of the case any further, the prayer of the accused to grant him bail was allowed.
These judgements conclusively give us an idea that current laws aren’t equipped to deal with cases when POCSO act is slapped against an adolescent. The judiciary has alerted the legislature to frame sufficient rules that are in line with societal changes so that justice can be ensured.