In a very significant development, we witnessed how just recently the Gwalior Bench of Madhya Pradesh High Court in a learned, logical, landmark, laudable and latest judgment titled Rahul Chandel Jatav v. The State of Madhya Pradesh & Anr in Misc. Criminal Case No. 24691 of 2023 that was pronounced as recently as on June 27, 2023 has requested the Government of India to think, deliberate and contemplate about reducing the consent age of the victim from 18 to 16 years in rape cases as defined by the Protection of Children from Sexual Offences (POCSO) Act saying that injustice is going on with the adolescent boys who enter into consensual sexual relationship. We ought to take into account the irrefutable fact that the Court urged the Central Government to seriously consider reducing the age of consent from 18 to 16 as existed earlier prior to amendment of 2013 to avoid the injustice of adolescent boys being treated as criminals while scrapping an FIR against an adolescent boy accused of rape.

This recommendation was made during the court’s examination of a petition that was filed by a 17-year-old-boy who had been charged under the POCSO Act following a complaint lodged by a 14-year-old girl in Gwalior of repeatedly raping her for six months and impregnating her in April 2020. The Court noted that ‘The Criminal Law (Amendment) Act of 2013 which raised the age of consent for sexual intercourse by girls from 16 to 18 years has disturbed the fabric of society. Further, the Court also observed that the increase in the age of consent to 18 years has led to adolescent boys being treated as criminals in society, resulting in unfairness. It must be noted that the Bench also noted that due to their exposure to social media, adolescents were getting puberty in early age and entering into consensual sexual relationships before turning adults.

It must be also mentioned here that the 17-year-old-boy was arrested in July 2020 and booked under Section 376 of the Indian Penal Code and relevant Sections of the Protection of Children from Sexual Offences Act (POCSO) Act. It also deserves mentioning that what is most lamentable is that the 17-year-old-boy also remained in prison without bail for the next three years. The Court before parting with the case unequivocally held that female and male children are getting attracted to each other which is resulting in physical relationships with consent and hence, in such cases, male persons are not at all criminal. So it is no wonder that the High Court allowed the plea and in the fitness of things quashed the FIR as well as proceedings against the petitioner.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Deepak Kumar Agarwal of Gwalior Bench of Madhya Pradesh High Court sets the ball in motion by first and foremost putting forth in the opening para itself that:
This petition has been filed under Section 482 of the Cr.P.C. for quashing of the FIR registered at Crime No. 378/2020 at Police StationThatipur, District, Gwalior under Sections 376(2)(F)(n), 376(3), 315 of IPC as well as under Section 5(L)(O)/6 of POCSO Act and 66 of IT Act as well as the Sessions Trial No.124/2020 pending before learned 13th Additional Sessions Judge, and Special Judge POCSO Act, Gwalior.

To put things in perspective, the Bench while dwelling on the facts of the case envisages in the next para of this notable judgment that:
In brief, facts of the case are that prosecutrix lodged a complaint against petitioner alleging that she is used to go to take coaching classes from present petitioner at Yadav Bhawan. On 18.01.2020, in the morning 7 AM, when she reached to Yadav Bhawan for classes, there were no one present on the said coaching and thereafter, petitioner gave her Juice to drink, thereafter, she became unconscious. Afterwards, present petitioner committed sexual intercourse with her and made video of her. Thereafter, in the pretext of viralling the video, he used to make physical relationship with her many times.

When she came to know in April that she was pregnant, she told Rahul, then he fed her a tablet which caused her miscarriage. Rahul used to come to her house several times through the roof and made physical relationship with her. Beside this, prosecutrix also knows one Mukesh Chokotia for the last four years. Mukesh Chokotia used to study with her in school. Mukesh was her distant relative. In 2016, Mukesh also in the pretext of marriage many times made physical relationship with her. On 16/07/2020 at 12:00 noon, Mukesh came to her locality and snatched her mobile and assaulted her with stick. He had sent her photos on her sister's mobile. Mukesh also used to come to her house and he committed sexual intercourse with her many times. On her report FIR bearing Crime No.378/2020 for the offence punishable under Sections 376(2)(n), 323, 506 of IPC and Section 3/4 of POCSO Act was registered against them.

On the one hand, the Bench mentions in the next para of this robust judgment that:
Learned counsel for the petitioner made submission that after about seven months on 17.07.2020, a false FIR has been lodged. Beside this, if any intercourse has been done, the same was with her consent, there was no force involved in it. There was no evidence of any penetration of sexual assault. In this regard, he has placed reliance on the judgment of High Court of Meghalaya At Shillong passed in Crl. Petn. No.3 of 2003 (Shri. John Franklin Shylla Vs. State of Meghalaya & Anr). Learned counsel for the petitioner has also placed reliance on the judgment of Hon’ble Supreme Court in the case of State of Rajasthan Vs. Tarun Vaishnav & Anr. passed in SLP (Crl) No. 1890/2023. With aforesaid submissions, he prayed for quashment of impugned FIR as well as all the consequential proceedings arising out of the said crime.

On the other hand, the Bench then states in the new para of this learned judgment that:
Learned Panel Lawyer for the State made submission that it is true that FIR is belated, but at the time of incident prosecutrix was minor. Hence, prayed for dismissal of this petition.

While citing the relevant case law, the Bench then points out in the next para that:
The Hon’ble Madras High in the case of Vijayalakshmi & Anr. v. State Rep. By. Inspector of Police, All women Police Station, Erode: Crl. O.P No. 232 of 2021, para 12 & 18 has observed as under:

12. 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.

18. 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.

Do note, the Bench notes in the next para that:
As per prosecution story, she was minor at the time of incident. This Court looking into the physical and mental development of an adolescent of that age group, would consider it logical that such a person is capable of making conscious decision as regard his or her well-being beside this as per complaint of prosecutrix, first she was engaged physically with present petitioner, thereafter, with Mukesh Chokotia as to the actual act of sexual intercourse. Prima facie, it appears that there is no mens rea involved.

Be it also noted, the Bench observes in the next para that:
Be that as it may, at this juncture, this Court is of the opinion that the proceeding of the case before the trial Court would serve no purpose in the peculiar facts and circumstances. On due consideration being given to the submission of the parties, the prayer of the petitioner is hereby allowed.

As a corollary, the Bench holds in the next para of this progressive judgment that:
The impugned FIR as well as all consequential proceedings arising out of Crime No.378/2020 registered against the present petitioner at Police Station Thatipur, District Gwalior for the offences punishable under Sections 376(2)(F) (n), 376(3), 315 of IPC as well as under Section 5(L)(O)/6 of POCSO Act and 66 of IT Act as well as the Sessions Trial No.124/2020 pending before learned 13th Additional Sessions Judge, and Special Judge POCSO Act are hereby quashed.

Finally and far most significantly, the Bench then concludes by holding in the final para of this commendable judgment that:
Before parting with the case, this Court would like to share its experience as a Judge that before amendments in IPC under Section 375 of IPC regarding age of prosecutrix for the purpose of consent that was 16 years and subsequently enhanced by amendment upto 18 years due to this amendment, fabric of society has been disturbed. Now a days, every male or female near the age of 14 years due to social media awareness and easily accessible internet connectivity is getting puberty in early age. Owing to this, female and male child are getting attraction and these attractions are resulting into physical relationship with consent. In these cases, male persons are not at all criminal. It is only a matter of age when they come into contact with female and develop physical relationship.

Only due to this reason, lawmakers in IPC when it came into force put the age of female as 16 years since they were well aware of the aforesaid facts. Generally, girls and boys of adolescents age develop friendship and thereafter, due to attraction make physical relationship. But, due to this rider boy is treated like a criminal in the society. Today, most of criminal cases in which prosecutrix is under 18 years of age, due to aforesaid anomaly, injustice is going on with adolescent boys. Thus, I request Government of India to think over the matter for reducing the age of prosecutrix from 18 to 16 years as earlier before amendments so that injustice should be redressed. With the aforesaid observations and directions, the present M.Cr.C. stands allowed and disposed of.

To conclude, what the Hon’ble Mr Justice Deepak Kumar Agarwal of Gwalior Bench of the Madhya Pradesh High Court has held must be seriously deliberated, discussed and debated by the Central Government. The injustice that is happening with the adolescents boys as pointed out by the Bench must be addressed without any more further delay. No denying it!

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