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 2ndRespondent, 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 2ndPetitioner 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
