'How Can POCSO Act Offence Be Termed Romantic?' : Supreme Court Slams HC Suggestion To Decriminalise 'Consensual' Sex Involving Older Teens

The Supreme Court on Tuesday (August 20) criticized the Calcutta High Court for observing in a judgment that the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) must be amended to decriminalise consensual sexual acts involving adolescents above sixteen years.

The Supreme Court further expressed disapproval of the High Court's suggestion that an exception must be carved out for "non-exploitative" sexual acts among older adolescents.

The High Court made these comments while quashing the conviction of a man (aged 25 years old at the time of the offence) for rape of a minor girl aged 14-year-old based on the premise that the relationship was "non-exploitative"

A bench of Justice Abhay Oka and Justice Ujjal Bhuyan reinstated the conviction of the man 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 POCSO offence be termed "romantic"?

The Court expressed surprise at the High Court terming the horrific sexual offence committed against the minor girl "non-exploitative" and "romantic relationship".

"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 Court also criticised the High Court's observation that "non-exploitative and consensual" acts among adolescents should be exempted from the POCSO Act.

Expressing shock at the High Court's comments, the Supreme Court said :

"The High Court concluded that by equating consensual and non-exploitative sexual acts with rape and aggravated penetrative sexual assault, the law undermines the bodily integrity and dignity of adolescents. The High Court was not called upon to discuss the merits and demerits of the existing laws. 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."

Courts have to implement the law, not do violence against the law

The Supreme Court also disapproved of the High Court's suggestion that the POCSO Act must be amended to decriminalise consensual sexual acts involving adolescents above sixteen years.

"The High Court, while dealing with an appeal against the order of conviction, was not called upon to make the observations which we have referred to above. Perhaps these were the subjects on which only the experts could have debated at a different forum. 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."

Setting aside the High Court's observations, the judgment authored by Justice Oka stated :

"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."

Conviction could not have been quashed even if there had been settlement

The Court in an appeal filed by the State of West Bengal set aside the High Court's decision to overturn the man's conviction. The High Court had cited the victim's ongoing cohabitation with the accused and the lack of support from her parents as reasons for invoking section 482 of CrPC to set aside the conviction.

Disapproving 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 noted earlier, in the facts of the case, the accused was not an adolescent, but his age was about twenty-five years on the date of the commission of the offence, and the victim was only fourteen years old. When such offences of rape and aggravated penetrative sexual assault are committed, by exercising its jurisdiction under Article 226 of the Constitution of India and/or Section 482 of the Cr.PC, the High Court cannot acquit an accused whose guilt has been proved.”

The Court also set aside the High Court's controversial remarks such as adolescent girls should control their sexual urges.

Related reports :

CJI DY Chandrachud Urges Parliament To Consider Concerns About Age Of Consent Under POCSO Act

Law Commission Recommends Amendments To POCSO Act & JJ Act To Avoid Imprisonment For Adolescents Involved In Sexual Activity

Background

The victim's mother lodged an FIR on May 29, 2018, reporting that her daughter had disappeared from their home. The investigation revealed that the accused, with the assistance of his two sisters, had enticed the victim to leave her home.

The victim later gave birth to a child, who was the biological daughter of the accused. The Special Judge under the POCSO Act convicted the man under Section 6 of the POCSO Act and Sections 363 and 366 of the IPC. He was sentenced to twenty years of rigorous imprisonment and a fine of Rs. 10,000. However, the Special Judge did not impose separate punishment for the offences under Section 376 of the IPC, given the sentence for the POCSO Act offence.

The High Court on October 18, 2023, acquitted him of the charges under Sections 363 and 366 of the IPC, finding that the prosecution had failed to establish these charges. Additionally, the HC exercised its jurisdiction under Article 226 of the Constitution and Section 482 of the CrPC to overturn 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.

Supreme Court's Analysis

The Supreme Court noted that the victim was fourteen years old at the time of the incident, while the accused was twenty-five. The victim's statement, along with other evidence, confirmed that the accused committed penetrative sexual assault, which resulted in the victim becoming pregnant. This constituted aggravated penetrative sexual assault under Section 6 of the POCSO Act, the Court held.

The Court found that the HC's exercise of jurisdiction under section 482 to set aside the conviction was inappropriate. The Court highlighted that the High Court could not quash the conviction based on sympathy or the victim's current living situation.

The HC had deemed the relationship between the accused and the victim as consensual and non-exploitative.

“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 POCSO Act, aimed at addressing child sexual exploitation and abuse, was enacted to uphold the rights of children as per the UN Convention on the Rights of Children, the Court noted.

The Court relied on the case of Gian Singh v. State of Punjab, which held that certain serious crimes like rape, murder etc cannot be dismissed merely due to a settlement between the victim and the accused. Thus, even if a settlement were reached, the HC could not lawfully quash the prosecution, the Court held.

The Supreme Court set aside the HC's judgment and restored the conviction of the accused for the offences under Section 6 of the POCSO Act and Sections 376(2)(n) and 376(3) of the IPC. The Court confirmed the acquittal of the accused for the charges under Sections 363 and 366 of the IPC.

The Court directed the Government of West Bengal to 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 emphasized 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.

Also from the judgment - Judge Has To Decide, Not Preach; Judgment Shouldn't Contain Judge's Personal Opinions : Supreme Court

Supreme Court Directs States/UT To Implement S.19(6) Of POCSO Act & JJ Act Provisions To Ensure Rehabilitation Of Child Victims

Case Details: In Re: Right to Privacy Of Adolescents, Suo Moto WP(C) No. 3 of 2023

Citation : 2024 LiveLaw (SC) 587

Click Here To Read/Download Judgment