Legal Services India - Law Articles is a Treasure House of Legal Knowledge and information, the law resources is an ever growing database of authentic legal information.

» Home
Monday, November 25, 2024

Punishing An Adolescent Boy Who Enters Into A Relationship With A Minor Girl Was Never The Objective Of POCSO Act: Madras HC

Posted in: Criminal Law
Mon, Feb 1, 21, 13:07, 4 Years ago
star star star star star
5 out of 5 with 1 ratings
comments: 0 - hits: 6202
Vijayalakshmi v. State Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of POCSO Act.

In a balanced, bold and brilliant judgment titled Vijayalakshmi & Anr. v. State & Anr. in Crl.O.P.No.232 of 2021 and Crl.M.P.No.109 of 2021 delivered on January 27, 2021, the Madras High Court minced no words to state unequivocally that, Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of POCSO Act. The remarks were made while highlighting the rampant misuse of the POCSO Act by families for prosecuting the partner of their teenage daughters. A single Judge Bench of Justice N Anand Venkatesh therefore insisted that the legislature must keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act.

To start with, the ball is set rolling by first and foremost pointing out in para 1 about the intent of the petition that:
This petition has been filed seeking to quash the proceedings pending in Special S.C.No.24 of 2018 on the file of the learned Sessions Judge, Mahila Court (Fast Track Mahila Court) Erode.

As we see, it is then stated aptly in para 2 that:
This is a very peculiar petition that has been filed by the Defacto Complainant and the victim girl, jointly seeking for quashing the proceedings pending against the 2nd Respondent who is facing trial before the Court below for offences under Section 366 of the Indian Penal Code, 1806, Section 6 of the Prevention of Child from Sexual Offences, 2012 (hereinafter referred to as POSCO Act or the Act) and Section 9 of the Prohibition of the Child Marriage Act, 2006.

While elaborating further, it is then stated in para 3 that:
It is seen from records that the 2nd Petitioner, victim girl, is well known to the second respondent, and they were in love with each other. Ultimately, they decided to get married and went away from their respective homes and a police complaint came to be filed before the 1st Respondent and the same has now resulted in criminal proceedings against the 2nd Respondent before the Court below.

As it turned out, the Bench then states in para 4 that:
Ms. Doulagh Nisha, Inspector of Police was present at the time of hearing through video conferencing and she informed this Court that the petitioners have approached her and informed her that they do not want to continue further with the criminal proceedings against the 2nd Respondent. It was informed to her that the 1st Petitioner 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.

To put things in perspective, it is then envisaged in para 5 that:
The Defacto Complainant and the victim girl were also present at the time of hearing through video conferencing. This Court examined the victim girl and she stated that there was a love affair between herself and the 2nd Respondent and that she is not willing to undergo this agony any further and wanted the criminal proceedings to be quashed.

Adding more to it, it is then laid bare in para 7 that:
The father of the victim girl who was examined as PW1 also did not support the case of the prosecution and he was treated as a hostile witness.

Still further adding more, it is then brought out in para 8 that:
The mother of the victim girl was also present at the time of hearing through video conferencing. She stated that let bygones be bygones, she wants her daughter to get married and settled in life. She further stated that she is not interested in pursuing the criminal proceedings any further and that same can be quashed by this Court.

Significantly, the Bench then brings out in para 10 that:
This Court is instantaneously reminded of an earlier order passed by a learned Single Judge of this Court, in Sabari v. Inspector of Police reported in 2019 (3) MLJ Crl 110, wherein he had discussed in detail about the cases in which persons of the age group of 16 to 18 years are involved in love affairs and how in some cases ultimately end up in a criminal case booked for an offence under the POSCO Act. The relevant portions of the judgment are extracted here under for proper appreciation:

 21.When this case was taken up for hearing, this Court became concerned about the growing incidence of offences under the POCSO Act on one side and also the Rigorous Imprisonment envisaged in the Act. Sometimes it happens that such offences are slapped against teenagers, who fall victim of the application of the POCSO Act at an young age without understanding the implication of the severity of the enactment.

26.In addition to the above, this Court is of the view that 'warning' of attraction of POCSO Act must be displayed before screening of any film, which have teenage characters suggesting relationship between boy and girl.

27.Apart from the above, this Court is of the view that as per the 3rd respondent's report, majority of cases are due to relationship between adolescent boys and girls. Though under Section 2(d) of the Act, 'Child' is defined as a person below the age of 18 years 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 rigours of POCSO Act. Once the age of the girl is established in such relationship as below 18 years, the boy involved in the relationship is sure to be sentenced 7 years or 10 years as minimum imprisonment, as the case may be.

28. When the girl below 18 years is involved in a relationship with the teen age boy or little over the teen age, it is always a question mark as to how such relationship could be defined, though such relationship would be the result of mutual innocence and biological attraction. Such relationship cannot be construed as an unnatural one or alien to between relationship of opposite sexes. But in such cases where the age of the girl is below 18 years, even though she was capable of giving consent for relationship, being mentally matured, unfortunately, the provisions of the POCSO Act get attracted if such relationship transcends beyond platonic limits, attracting strong arm of law sanctioned by the provisions of POCSO Act, catching up with the so called offender of sexual assault, warranting a severe imprisonment of 7/10 years.

29.Therefore, on a profound consideration of the ground realities, the definition of 'Child' under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous 46 provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision, which can be introduced in the Act itself and in order to distinguish the cases of teen age relationship after 16 years, from the cases of sexual assault on children below 16 years. The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence.

More significantly, it is then made clear in para 11 that:
There can be no second thought as to the seriousness of offences under the POCSO Act and the object it seeks to achieve. However, it is also 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. What came to be a law to protect and render justice to victims and survivors of child abuse, can, become a tool in the hands of certain sections of the society to abuse the process of law.

Equally significant is what is then stated in para 12 that:
As rightly recognized by the Learned Single Judge of this Court in Sabari's Case (cited supra), incidences where teenagers and young adults fall victim to offences under the POCSO Act being slapped against them without understanding the implication of the severity of the enactment is an issue that brings much concern to the conscience of this Court. A reading of the Statement of Objects and Reasons of the POCSO Act would show that the Act was brought into force to protect children from offences of sexual assault, sexual harassment and pornography, pursuant to Article 15 of the Constitution of India, 1950 and the Convention on the Rights of the Child. However, a large array of cases filed under the POCSO Act seems to be those arising on the basis of complaints registered by the families of adolescents and teenagers who are involved in romantic relationships with each other. The scheme of the Act clearly shows that it did not intend to bring within its scope or ambit, cases of the nature where adolescents or teenagers involved in romantic relationships are concerned.

It is also worth noting that it is then rightly pointed out in para 16 that:
In light of the above, it is only natural that there are cases of the above-mentioned nature that are on the rise at present and it does not help matters to avoid acknowledging that the society is changing and influencing people's identity and cognition, constantly. Therefore, painting a criminal colour to this aspect would only serve counter-productively to understanding biosocial dynamics and the need to regulate the same through the process of law.

Of course, it is then conceded in para 17 that:
This Court is not turning a blind eye to cases where the victim or survivor may, under the effect of trauma that they have undergone, studies on which show that they might tend to reconcile with the same by blaming themselves or convincing themselves that the element of consent was infact present. Nor is this Court scientifically justifying in toto, the genuineness or predicament of the accused in every case where it appears that the accused and victim child have been in a romantic relationship. That will depend on the facts and circumstances of each and every case.

Most significantly, it is then made absolutely clear without mincing any words in para 18 that:
In the present case, the 2nd Petitioner who was in a relationship with the 2nd Respondent who is also in his early twenties, has clearly stated that she was the one who insisted that the 2nd Respondent take her away from her home and marry her, due to the pressure exerted by her parents. The 2nd Respondent, who was placed in a very precarious situation decided to concede to the demand of the 2nd Petitioner.

Thereafter, they eloped from their respective homes, got married and consummated the marriage. Incidents of this nature keep occurring regularly even now in villages and towns and occasionally in cities. After the parents or family lodge a complaint, the police register FIRs for offences of kidnapping and various offences under the POCSO Act. Several criminal cases booked under the POCSO Act fall under this category. As a consequence of such a FIR being registered, invariably the boy gets arrested and thereafter, his youthful life comes to a grinding halt.

The provisions of the POCSO Act, as it stands today, will surely make the acts of the boy an offence due to its stringent nature. An adolescent boy caught in a situation like this will surely have no defense if the criminal case is taken to its logical end. Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act. 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.

These incidents should never be perceived from an adult's point of view and such an understanding will in fact lead to lack of empathy. An adolescent boy who is sent to prison in a case of this nature will be persecuted throughout his life. It is high time that the legislature takes into consideration cases of this nature involving adolescents involved in relationships and swiftly bring in necessary amendments under the Act. The legislature has to keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act.

Needless to say, it is then stated in no uncertain terms in para 19 that:
The main issue that requires the consideration of this Court is as to whether this Court can quash the criminal proceedings involving non-compoundable offences pending against the second respondent. The Hon'ble Supreme Court in the case of Parbathbhai Aahir @ Parbathbhai Vs. State of Gujrath, reported in 2017 9 SCC 641 and in case of The State of Madhya Pradesh Vs. Dhruv Gurjar and Another reported in (2019) 2 MLJ Crl 10, has given sufficient guidelines that must be taken into consideration by this Court while exercising its jurisdiction under Section 482 of Cr.P.C, to quash non-compoundable offences. One very important test that has been laid down 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. The Hon'ble Supreme Court has held that offences against the society with overriding public interest even if it gets settled between the parties, cannot be quashed by this Court.

Truth be told, it is then held in para 20 that:
In the present case, the offences in question are purely individual/personal in nature. It involves the 2nd Petitioner and the 2nd Respondent and their respective families only. It involves the future of two young persons who are still in their early twenties. The second respondent is working as an Auto driver to eke his livelihood. Quashing the proceedings, will not affect any overriding public interest in this case and it will in fact pave way for the 2nd Petitioner and the 2nd Respondent to settle down in their life and look for better future prospects. 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 mother and not to forget the 2nd Respondent as well.

Finally, it is then stated in para 21 that:
In view of the above, this Court is inclined to quash the criminal proceedings in Special S.C.No.24 of 2018 on the file of the learned Sessions Judge, Mahila Court (Fast Track Mahila Court) Erode in exercise of its jurisdiction under Section 482 of the Criminal Procedure Code, 1973. Accordingly, the same is quashed and this Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is also closed.

In totality, what this extremely laudable, learned, landmark and latest judgment delivered by Justice N Anand Venkatesh of the Madras High Court seeks to convey is that, Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of POCSO Act. It cannot be also denied that the Madras High Court in this leading case has also very rightly conceded that there is rampant misuse of the POCSO Act by families for prosecuting the partner of their teenage daughters. This cannot be allowed to go on till perpetuity. A full stop has to be inserted somewhere and this is exactly what the Madras High Court has sought to do in this notable case also! There can certainly be no denying or disputing it! It is also very rightly conceded by the Madras High Court that punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender was never the objective of the POCSO Act. It is high time and the law makers must amend the POCSO Act so that the whole life of adolescent boy is not impaired for an act which he did at the adolescent stage!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.

Comments

There are no comments for this article.
Only authorized users can leave comments. Please sign in first, or register a free account.
Share
Sponsor
About Author
Sanjeev Sirohi Advocate
Member since Apr 20, 2018
Location: Meerut, UP
Following
User not following anyone yet.
You might also like
The general principle, is that a FIR cannot be depended upon a substantive piece of evidence.The article discusses the general priciple, along with exceptions to it.
Victim plays an important role in the criminal justice system but his/her welfare is not given due regard by the state instrumentality. Thus, the role of High Courts or the Supreme Court in our country in affirming and establishing their rights is dwelt in this article.
Can anybody really know what is going inside the heads of criminal lawyers? I mean, yes, we can pick bits of their intelligence during courtroom trials and through the legal documents that they draft.
Terrorism and organized crimes are interrelated in myriad forms. Infact in many illustration terrorism and organized crimes have converged and mutated.
Right to a copy of police report and other documents As per section 207 of CrPC, accused has the right to be furnished with the following in case the proceeding has been initiated on a police report:
In terms of Section 2 of the Protection of Human Rights Act, 1993 hereafter referred to as 'the Act'), "human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed under the Constitution
The Oxford dictionary defines police as an official organization whose job is to make people obey the law and to prevent and solve crime
the Supreme Court let off three gang rapists after they claimed a ‘compromise formula’ with the victim and agreed to pay her a fine of Rs 50,000 each for their offence.
benefit those prisoners who are kept in solitary confinement, the Uttarakhand High Court delivered a landmark judgment in the case of State of Uttarakhand v 1. Mehtab s/o Tahir Hassan 2. Sushil @Bhura s/o Gulab Singh Criminal Reference No. 1 of 2014 on April 27, 2018
this article helps you knowing how to become a criminal lawyer
helps you to know adultery and its types
In the landmark case of Manoj Singh Pawar v State of Uttarakhand & others Writ Petition (PIL) No. 156 of 2016 which was delivered on June 18, 2018, the Uttarakhand High Court issued a slew of landmark directions
Scope and ambit of Section 6 of Indian Evidence Act,1872
Victims of Crime Can Seek Cancellation of Bail: MP HC in Mahesh Pahade vs State of MP
State of Orissa v Mahimananda Mishra said clearly and convincingly that the court must not go deep into merits of the matter while considering an application for bail and all that needs to be established from the record is the existence of a prima facie case against the accused.
Yashwant v Maharashtra while the conviction of some police officers involved in a custodial torture which led to the death of a man was upheld, the Apex Court underscored on the need to develop and recognize the concept of democratic policing wherein crime control is not the only end, but the means to achieve this order is also equally important.
20 more people guilty of killing a 60-year-old Dalit man and his physically-challenged daughter. Upheld acquittals of 21 other accused, holding that there was insufficient evidence to establish their guilt. So it was but natural that they had to be acquitted
No person accused of an offence punishable for offences involving commercial quantity shall be released on bail or on his own bond unless
Accident under section 80 under the Indian Penal Code falls under the chapter of general exceptions. This article was made with the objective of keeping in mind the students of law who are nowadays in dire need of material which simplify the law than complicating it.
Nishan Singh v State of Punjab. Has ordered one Nishan Singh Brar, convicted of abduction and rape of a minor victim girl, and his mother Navjot Kaur to pay Rs 90 lakh towards compensation.
Rajesh Sharma v State of UP to regulate the purported gross misuse of Section 498A IPC have been modified just recently in a latest judgment titled Social Action Forum Manav for Manav Adhikar and another v Union of India Ministry of Law and Justice and others.
Kodungallur Film Society vs. Union of India has issued comprehensive guidelines to control vandalism by protesting mobs. Vandalism is vandalism and it cannot be justified under any circumstances. Those who indulge in it and those who instigate it must all be held clearly accountable and made to pay for what they have done most shamefully.
Ram Lal vs. State of Himachal Pradesh If the court is satisfied that if the confession is voluntary, the conviction can be based upon the same. Rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated. Absolutely right There can be no denying it
Joseph Shine case struck down the law of adultery under Section 497. It declared that adultery can be a ground for civil issues including dissolution of marriages but it cannot be a criminal offence. It invalidated the Section 497 of IPC as a violation of Articles 14 and 15 and under Article 21 of the Constitution
Mallikarjun Kodagali (Dead) represented through Legal Representatives v/s Karnataka, Had no hesitation to concede right from the start while underscoring the rights of victims of crime that, The rights of victims of crime is a subject that has, unfortunately, only drawn sporadic attention of Parliament, the judiciary and civil society.
State of Kerala v Rasheed observed that while deciding an application to defer cross examination under Section 231(2) of the Cr.P.C. a balance must be struck between the rights of the accused, and the prerogative of the prosecution to lead evidence. The Apex Court in this landmark judgment also listed out practical guidelines.
Reena Hazarika v State of Assam that a solemn duty is cast on the court in the dispensation of justice to adequately consider the defence of the accused taken under Section 313 CrPC and to either accept or reject the same for reasons specified in writing.
Zulfikar Nasir & Ors v UP has set aside the trial court judgment that had acquitted 16 Provincial Armed Constabulary (PAC) officials in the 1987 Hashimpur mass murder case. The Delhi High Court has convicted all the accused and sentenced them to life imprisonment.
In Babasaheb Maruti Kamble v Maharashtra it was held that the Special Leave Petitions filed in those cases where death sentence is awarded by the courts below, should not be dismissed without giving reasons, at least qua death sentence.
Shambhir & Ors v State upholding the conviction and punishment of over 80 rioters has brought some solace to all those affected people who lost their near and dear ones in the ghastly 1984 anti-Sikh riots which brought disrepute to our country and alienated many Sikhs from the national mainstream
Naman Singh alias Naman Pratap Singh and another vs. UP, Supreme Court held a reading of the FIR reveals that the police has registered the F.I.R on directions of the Sub-Divisional Magistrate which was clearly impermissible in the law.
It has been a long and gruelling wait of 34 long years for the survivors of 1984 anti-Sikh riots to finally see one big leader Sajjan Kumar being sentenced to life term by Delhi High Court
Rajendra Pralhadrao Wasnik v State of Maharashtra held that criminals are also entitled to life of dignity and probability of reformation/rehabilitation to be seriously and earnestly considered before awarding death sentence. It will help us better understand and appreciate the intricacies of law.
Sukhlal v The State of Madhya Pradesh 'life imprisonment is the rule and death penalty is the exception' has laid down clearly that even when a crime is heinous or brutal, it may not still fall under the rarest of rare category.
Deepak v State of Madhya Pradesh in which has served to clarify the entire legal position under Section 319 CrPC, upheld a trial court order under Section 319 of the CrPc summoning accused who were in the past discharged by it ignoring the supplementary charge sheet against them.
It has to be said right at the outset that in a major reprieve for all the political leaders accused of being involved in the Sohrabuddin fake encounter case, in CBI, Mumbai vs Dahyaji Goharji Vanzara
Devi Lal v State of Rajasthan the Supreme Court has dispelled all misconceived notions about suspicion and reiterated that,
Madhya Pradesh v Kalyan Singh has finally set all doubts to rest on the nagging question of whether offences under Section 307 of IPC can be quashed on the basis of settlement between parties.
Dr Dhruvaram Murlidhar Sonar v Maharashtra made it amply clear that if a person had not made the promise to marry with the sole intention to seduce a woman to indulge in sexual acts, such an act would not amount to rape.
Rajesh v State of Haryana conviction under Section 306 of the Indian Penal Code (Abetment of Suicide) is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide.
Nand Kishore v Madhya Pradesh has commuted to life imprisonment the death sentence which was earlier confirmed by the Madhya Pradesh High Court of a convicted for the rape and murder of an eight-year-old girl.
Raju Jagdish Paswan v. Maharashtra has commuted the death penalty of a man accused of rape and murder of a nine year old girl and sentenced him to 30 years imprisonment without remission.
Swapan Kumar Chatterjee v CBI permitting the application filed by the prosecution for summoning a hand writing expert in a corruption case of which the trial had started in 1985. On expected lines, the Bench accordingly delivered its significant judgment thus laying down the correct proposition of law to be followed always in such cases
Sukhpal Singh v Punjab that the inability of the prosecution to establish motive in a case of circumstantial evidence is not always fatal to the prosecution case. Importance of motive in determining the culpability of the accused but refused to acknowledge it as the sole criteria for not convicting the accused in the absence of motive.
Gagan Kumar v Punjab it is a mandatory legal requirement for Magistrate to specify whether sentences awarded to an accused convicted for two or more offences, would run concurrently or consecutively.
Dnyaneshwar Suresh Borkar v Maharashtra Even poem can help save a death convict from gallows. The Apex Court has in this latest, landmark and laudable judgment commuted the death penalty of a kidnap cum murder convict who was just 22 years of age at the time of occurrence
Himachal Pradesh v Vijay Kumar Supreme court held about acid attack crime that a crime of this nature does not deserve any kind of clemency.
Death Sentence Can Be Imposed Only When Life Imprisonment Appears To Be An Altogether Inappropriate Punishment: SC
S. Sreesanth v. The Board of Control For Cricket In India the Supreme Court set aside a life ban imposed on former Indian cricketer S Sreesanth in connection with the 2013 IPL spot-fixing scandal and asked the BCCI Disciplinary Committee to take a fresh call on the quantum of his punishment under the Anti-Corruption Code.
Adding Additional Accused To Invoke Section 319 CrPC Stronger Evidence Than Mere Probability of Complicity of A Person Required: SC stated in Sugreev Kumar v. State of Punjab
Top