Consider Counselling Instead Of Arresting Adolescent Boys Under POCSO Act For Dating Minor Girls: Uttarakhand HC To State Govt

The Uttarakhand High Court on Monday asked the State Government to explore the possibility of counselling adolescent boys who date minor girls instead of arresting them under the Protection of Children from Sexual Offences (POCSO) Act.

A bench of Chief Justice Ritu Bahri and Justice Rakesh Thapliyal issued a notice to the Union of India and the State Government on a Public Interest Litigation (PIL) plea seeking directives to prevent the arrest of adolescent boys, under the POCSO Act, involved in consensual romantic relationships.

The PIL, filed by Advocate Manisha Bhandari, seeks a detailed examination of the issue while highlighting cases where young couples aged between 16 and 18 years are often subjected to legal action based on complaints lodged by the girl's parents.

Hearing the PIL plea on July 1, the division bench directed the State government to examine whether recording the statement under section 161 of the CrPC would be sufficient not to arrest the boy, who had gone on a date with the girl.

"...at the most, he can be called for giving him advice not to indulge in these things, but he should not be arrested. The State can examine this issue and issue a general directions for the Police Department," the Court observed in its order.

In the PIL plea, it has been stated that nowadays, young teenage children are into dating and the act of dating once in the knowledge of parents leads to umpteen false concocted versions and finally into FIR's "whereby the male counterpart ends up behind bars and his entire future gets jeopardized".

"On the contrary what is the need of the hour is that there should not be any incarceration and the children or young boys and girls should get proper counselling and their custody should be handed over to their respective parents," the PIL plea submits.

It also pleads that the respondents should address the issue where a boy and a girl, both aged between 16 and 18 years, are dating. If the girl's parents file a complaint, the boy should not be arrested, as no offense under Sections 3, 4, 5, 6, and 7 of the POCSO Act is established in this context.

Against the backdrop of these submission, the PIL plea prays for a direction to declare that consensual acts between two persons who are both below the age of 16 years shall not constitute an offence under the POCSO Act and such persons shall not be made accused under POCSO Act and shall not be arrested or detained for the said consensual acts, and instead shall be provided by counselling.

Similar prayer has been sought for the minor who are between 16 to 18 years of age. It further seeks a direction that they (16-18 year old minors) be refered to the board for preliminary assessment in the nature of an assessment envisaged under Section 15 of the Juvenile Justice Act wherein the Board shall conduct a preliminary assessment with regard to the mental and physical capacity of the minor to give a valid consent and where such minor is found to be capable of giving valid consent to the said acı, then such persons shall not be made accused under POCSO Act and shall not be arrested or detained for the said consensual acts, and shall be provided by counselling.

Lastly, the PIL plea also prays that a direction be siseud that when consensual sexual acts occur between two persons where one is above 18 years and the other is between 16 to 18 years, the minor should undergo a preliminary assessment under Section 15 of the Juvenile Justice Act.

The PIL plea reasons that this assessment by the Juvenile Justice Board would evaluate the minor's mental and physical capacity to consent. If the minor is deemed capable of giving valid consent, neither individual should be charged under the POCSO Act, nor should they be arrested or detained for the consensual acts.

The matter will be heard next on August 6.