# 2024 INSC 614

- **Citation:** 2024 INSC 614
- **Court:** Supreme Court of India
- **Decided:** 2024-08-20
- **Bench:** Abhay S. Oka, Ujjal Bhuyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2024-insc-614-37853
- **Pages:** 40

## Headnote

(i) When a Court deals with an appeal against an order of conviction,
what are the essentials, which a judgment must contain; (ii) What
was the duty of the High Court while ascertaining the offences u/s.6
of the Protection of Children from Sexual Offences Act, 2012 &
Section 376 of the IPC and Can an act that is an offence punishable
under the POSCO Act be described as "a romantic relationship";
(iii) Whether the High Court can exercise the plenary powers to
quash the order of conviction on the grounds of settlement or by
consent; (iv) Whether the State was under an obligation to take
care of the victim of an offence under the POCSO Act, who was
fourteen years old; (v) Implementation of the provisions of section
19(6) of the Protection of Children from Sexual Offences Act, 2012
and the provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2015; (vi) Importance of rehabilitation of the victims
of offences under the POCSO Act.
Headnotes†
Protection of Children from Sexual Offences Act, 2012 - s.6 -
Penal Code, 1860 - s.376(2)(n) - Conviction under - The
accused, twenty-five years old, enticed victim, fourteen year
old, to leave her house - A female child was born to the
victim - Admittedly, the accused is the biological father of the
child - The Special Judge appointed under the POCSO Act,
convicted the accused for the offences punishable u/s. 6 of
the POCSO Act and under s.363, s.366, under clause (n) of
sub-section (2) and sub-section (3) of s.376 of the IPC - By
the impugned judgment, the High Court held that the offences
punishable u/s. 363 and s.366 of the IPC were not made out, and
also set aside the conviction of the accused for the offences
punishable u/s. 6 of the POCSO Act and sub-sections 2(n)
and (3) of s.376 of the IPC - Correctness:
Held: In this case, there is no dispute about the fact that the accused
committed penetrative sexual assault on the victim - As the victim
became pregnant as a consequence of the sexual assault, in view
* Author
576
[2024] 8 S.C.R.
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of sub-clause (ii) of clause (j) of Section 5 of the POCSO Act, it
became a case of aggravated penetrative sexual assault - On facts,
there cannot be any dispute that the commission of the offence
punishable under Section 6 of the POCSO Act by the accused was
duly proved - Under Section 375 of the IPC, having penetrative
intercourse with a victim who is under 18 years of age with or
without her consent becomes an offence of rape - As the offence
was repeatedly committed on the victim, clause (n) of sub-section
(2) of Section 376 of the IPC is attracted - Therefore, the accused
was liable to be punished in accordance with Section 376(2)(n) of
the IPC - As far as offences u/ss.363, 366 are concerned, in the
instant case, there is no evidence to prove that the accused took the
victim out of the keeping of the lawful guardian - Similarly, there is no
evidence of enticing the victim - The mother of the victim deposed
that the victim left her house on her own - That is also the version
of the victim - Hence, the prosecution did not establish kidnapping -
The offences punishable under Sections 363 and 366 of the IPC
are not made out - The findings and observations in the impugned
judgment of the High Court, except the finding on the applicability of
Sections 363 and 366 of the IPC, cannot be sustained - Thus, the
impugned judgment of the High Court is set aside and the judgment
of the Special Court is restored to the extent of the conviction of
the accused for the offences punishable under sub-sections (2)(n)
and (3) of Section 376 of the IPC and Section 6 of the POCSO
Act - Accordingly, the accused stands convicted - The acquittal of
the accused for the offences punishable under Sections 363 and
366 of the IPC is confirmed. [Paras 10, 11, 12, 44(a)]
Judgment - When a Court deals with an appeal against an
order of conviction, what are the essentials, which a judgment
must contain:
Held: When a Court deals with an ap

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[2024] 8 S.C.R. 575 : 2024 INSC 614
In Re: Right To Privacy of Adolescents
(Suo Motu Writ Petition (Civil) No. 3 of 2023)
20 August 2024
[Abhay S. Oka* and Ujjal Bhuyan, JJ.]
Issue for Consideration
(i) When a Court deals with an appeal against an order of conviction,
what are the essentials, which a judgment must contain; (ii) What
was the duty of the High Court while ascertaining the offences u/s.6
of the Protection of Children from Sexual Offences Act, 2012 &
Section 376 of the IPC and Can an act that is an offence punishable
under the POSCO Act be described as "a romantic relationship";
(iii) Whether the High Court can exercise the plenary powers to
quash the order of conviction on the grounds of settlement or by
consent; (iv) Whether the State was under an obligation to take
care of the victim of an offence under the POCSO Act, who was
fourteen years old; (v) Implementation of the provisions of section
19(6) of the Protection of Children from Sexual Offences Act, 2012
and the provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2015; (vi) Importance of rehabilitation of the victims
of offences under the POCSO Act.
Headnotes†
Protection of Children from Sexual Offences Act, 2012 - s.6 -
Penal Code, 1860 - s.376(2)(n) - Conviction under - The
accused, twenty-five years old, enticed victim, fourteen year
old, to leave her house - A female child was born to the
victim - Admittedly, the accused is the biological father of the
child - The Special Judge appointed under the POCSO Act,
convicted the accused for the offences punishable u/s. 6 of
the POCSO Act and under s.363, s.366, under clause (n) of
sub-section (2) and sub-section (3) of s.376 of the IPC - By
the impugned judgment, the High Court held that the offences
punishable u/s. 363 and s.366 of the IPC were not made out, and
also set aside the conviction of the accused for the offences
punishable u/s. 6 of the POCSO Act and sub-sections 2(n)
and (3) of s.376 of the IPC - Correctness:
Held: In this case, there is no dispute about the fact that the accused
committed penetrative sexual assault on the victim - As the victim
became pregnant as a consequence of the sexual assault, in view
* Author
576
[2024] 8 S.C.R.
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of sub-clause (ii) of clause (j) of Section 5 of the POCSO Act, it
became a case of aggravated penetrative sexual assault - On facts,
there cannot be any dispute that the commission of the offence
punishable under Section 6 of the POCSO Act by the accused was
duly proved - Under Section 375 of the IPC, having penetrative
intercourse with a victim who is under 18 years of age with or
without her consent becomes an offence of rape - As the offence
was repeatedly committed on the victim, clause (n) of sub-section
(2) of Section 376 of the IPC is attracted - Therefore, the accused
was liable to be punished in accordance with Section 376(2)(n) of
the IPC - As far as offences u/ss.363, 366 are concerned, in the
instant case, there is no evidence to prove that the accused took the
victim out of the keeping of the lawful guardian - Similarly, there is no
evidence of enticing the victim - The mother of the victim deposed
that the victim left her house on her own - That is also the version
of the victim - Hence, the prosecution did not establish kidnapping -
The offences punishable under Sections 363 and 366 of the IPC
are not made out - The findings and observations in the impugned
judgment of the High Court, except the finding on the applicability of
Sections 363 and 366 of the IPC, cannot be sustained - Thus, the
impugned judgment of the High Court is set aside and the judgment
of the Special Court is restored to the extent of the conviction of
the accused for the offences punishable under sub-sections (2)(n)
and (3) of Section 376 of the IPC and Section 6 of the POCSO
Act - Accordingly, the accused stands convicted - The acquittal of
the accused for the offences punishable under Sections 363 and
366 of the IPC is confirmed. [Paras 10, 11, 12, 44(a)]
Judgment - When a Court deals with an appeal against an
order of conviction, what are the essentials, which a judgment
must contain:
Held: When a Court deals with an appeal against an order of
conviction, the judgment must contain (i) a concise statement of
the facts of the case, (ii) the nature of the evidence adduced by
the prosecution and the defence, if any, (iii) the submissions made
by the parties, (iv) the analysis based on the re-appreciation of
evidence, and (v) the reasons for either confirming the guilt of
the accused or for acquitting the accused - The appellate court
must scan through the evidence, both oral and documentary, and
re-appreciate it - After re-appreciating the evidence, the appellate
court must record reasons for either accepting the evidence of the
prosecution or for disbelieving the evidence of the prosecution -
[2024] 8 S.C.R.
577
In Re: Right To Privacy of Adolescents
The Court must record reasons for deciding whether the charges
against the accused have been proved - In a given case, if the
conviction is confirmed, the Court will have to deal with the legality
and adequacy of the sentence - In such a case, there must be a
finding recorded on the legality and adequacy of the sentence with
reasons - The ultimate object of writing a judgment is to ensure
that the parties before the Court know why the case is decided in
their favour or against them - Therefore, judgment must be in a
simple language - The conclusions recorded by the Court in the
judgment on legal or factual issues must be supported by cogent
reasons. [Para 13]
Judgment - Judgment cannot contain the Judge's personal
opinion - The judgment cannot contain irrelevant and
unnecessary material:
Held: The Court can always comment upon the conduct of the
parties - However, the findings regarding the conduct of the parties
must be confined only to such conduct which has a bearing on
the decision-making - A judgment of the Court cannot contain the
Judge's personal opinions on various subjects - Similarly, advisory
jurisdiction cannot be exercised by the Court by incorporating advice
to the parties or advice in general - The Judge has to decide a
case and not preach - The judgment cannot contain irrelevant and
unnecessary material - A judgment must be in simple language
and should not be verbose. [Para 14]
Protection of Children from Sexual Offences Act, 2012 - s.6 -
Penal Code, 1860 - s.376 - What was the duty of the High
Court while ascertaining the offences u/s.6 of the POCSO
Act and s.376 of the IPC and Can an act that is an offence
punishable under the POSCO Act be described as "a romantic
relationship":
Held: The duty of the High Court was to ascertain on the evidence
whether the offences u/s.6 of the POCSO Act and s.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 - An act that is an offence punishable under the
POSCO Act cannot be described as "a romantic relationship" -
The Courts must follow and implement the law - The Courts
cannot commit violence against the law. [Para 19]
578
[2024] 8 S.C.R.
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Protection of Children from Sexual Offences Act, 2012 - Penal
Code, 1860 - Exercise of Plenary Powers to quash the order
of conviction:
Held: On a plain reading of "sixthly" in Section 375 r/w. Section
376(2)(n) of the IPC, notwithstanding the consensual sexual
relationship, the offence punishable under clause (n) of subsection (2) of Section 376 of the IPC, was made out in the instant
case - One of the objectives of the POSCO Act is to effectively
address sexual exploitation and sexual abuse of children, as both
offences are very heinous - 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 u/Art. 226 of the Constitution of India and/or s.482
of the Cr.PC, the High Court cannot acquit an accused whose
guilt has been proved - In the instant case, the High Court was
influenced by the fact that the victim's parents did not support her,
and therefore, by sending the accused to jail, she and her child
would be miserable as the accused and his family were taking care
of them - There are various decisions of this Court holding that
the High Court can exercise jurisdiction u/s. 482 of the Cr.PC to
quash a prosecution on the grounds of settlement or by consent -
However, in respect of serious offences like murder, rape, dacoity,
etc., or other offences of mental depravity under IPC or offences
of moral turpitude under special statutes, like the Prevention of
Corruption Act or the offences committed by public servants while
working in that capacity, the settlement between the offender and
the victim can have no legal sanction at all - 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. [Paras 21, 22, 23, 23.1]
Protection of Children from Sexual Offences Act, 2012 -
s.19(6) - Juvenile Justice (Care and Protection of Children)
Act, 2015 - s.27, s.2(14) - Whether the State was under an
obligation to take care of the victim of an offence under the
POCSO Act, who was fourteen years old:
Held: Under sub-section (6) of Section 19, it was the duty of the
police to report the matter to the Child Welfare Committee (CWC)
[2024] 8 S.C.R.
579
In Re: Right To Privacy of Adolescents
and the Special Court within a period of twenty-four hours from
the time the police had the knowledge about the commission
of the offence - In the instant case, there is nothing placed on
record which shows that compliance was made by reporting the
case to CWC - Section 27 of the JJ Act provides for setting up
the CWC - The authority of the CWC is to dispose of the cases
for care, protection, treatment, development and rehabilitation of
children in need of care and protection, as well as to provide for
their basic needs and protection - The authority conferred on
the CWC creates a corresponding obligation - Even a child who
has a parent or guardian and if such parent or guardian is found
to be unfit to take care of the child, in such a case, the child is
covered by the definition under sub-section (14) of s.2 of the JJ
Act - Therefore, the CWC has to exercise the power to provide
basic needs and protection to such children in need of care and
protection - The JJ Act is a complete code that makes provisions
for the care, protection, treatment, and development of children
in need of care and protection - The JJ Act provides for making
available their basic needs and protection - The Act takes care of
all the needs of the victims under the POCSO Act who fall under
the category of children in need of care and protection - The object
is to undertake the rehabilitation and social re-integration process
of such victims based on individual care plans as provided u/s. 39
of the JJ Act - Section 46 is a provision that requires the State
Governments to frame rules to provide financial support to any
child living in a child care institution upon completion of 18 years
of age - The financial support has to be very exhaustive as the
object of financial support is to facilitate a child's re-integration
into mainstream society - In the instant case, these statutory
provisions were overlooked entirely, a situation was created
which did not allow the victim to make an informed choice about
her future - She did not get that opportunity even after attaining
majority. [Paras 27.1, 28, 28.1, 28.2, 34]
Constitution of India - Art. 21 - Juvenile Justice (Care and
Protection of Children) Act, 2015 - Protection of Children from
Sexual Offences Act, 2012 - Importance of rehabilitation of
the victims of offences under the POCSO Act - Compliance
and implementation of 19(6) of POCSO:
Held: It is the responsibility of the State to take care of helpless
victims - The right to live a dignified life is an integral part of the
fundamental right guaranteed under Article 21 of the Constitution
580
[2024] 8 S.C.R.
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of India - Article 21 encompasses the right to lead a healthy
life - The minor child, who is the victim of the offences under the
POCSO Act, is also deprived of the fundamental right to live a
dignified and healthy life - The same is the case of the child born
to the victim as a result of the offence - All the provisions of the
JJ Act regarding taking care of such children and rehabilitating
them are consistent with Article 21 of the Constitution of India -
Therefore, immediately after the knowledge of the commission of
a heinous offence under the POCSO Act, the State, its agencies
and instrumentalities must step in and render all possible aid to the
victim children, which will enable them to lead a dignified life - The
failure to do so will amount to a violation of the fundamental rights
guaranteed to the victim children under Article 21 - The police must
strictly implement sub-section (6) of Section 19 of the POCSO
Act - If that is not done, the victim children are deprived of the
benefits of the welfare measures under the JJ Act - Compliance
with Section 19(6) is of vital importance - Non-compliance thereof
will lead to a violation of Article 21. [Para 37]
Protection of Children from Sexual Offences Act, 2012 -
Juvenile Justice (Care and Protection of Children) Act, 2015 -
Formation of expert committee - Directions issued:
Held: Directions issued to the State to form a expert committee -
The State Government to provide all the material particulars/details
of the benefits which it is willing to extend to the victim - Thereafter,
the committee shall meet the victim of the offences at such a
place as it desires to communicate what the State Government is
offering to her - The Committee must also inform the victim about
the availability of the benefits of the scheme of the Government
of India - The duty of the committee shall be to help the victim to
make an informed choice whether she wants to continue to remain
in the company of the accused and his family or wants to avail of
the benefits offered by the State Government - The coordinator
of the committee shall submit a report in a sealed cover to this
Court. [Paras 44(b)(d)(e)(h)]
Protection of Children from Sexual Offences Act, 2012 -
Juvenile Justice (Care and Protection of Children) Act, 2015 -
Implementation of - Directions issued:
Held: The Registry of the Supreme Court directed to forward
copies of this judgment to the Secretaries of Law and/or Justice
Departments of all the States and Union Territories - The
Secretaries to convene meetings of the Secretaries of the concerned
[2024] 8 S.C.R.
581
In Re: Right To Privacy of Adolescents
departments and other senior officials - The object of holding such
meetings is to ensure that appropriate directions are issued to all
concerned to strictly implement the provisions of Section 19(6) of the
POCSO Act and the relevant provisions of the JJ Act. [Para 44(i)]
Case Law Cited
Gian Singh v. State of Punjab & Anr. [2012] 8 SCR 753 : (2012)
10 SCC 303 - relied on.
List of Acts
Protection of Children from Sexual Offences Act, 2012; Juvenile
Justice (Care and Protection of Children) Act, 2015; Constitution
of India; Penal Code, 1860.
List of Keywords
Section 6 of Protection of Children from Sexual Offences Act,
2012; Section 376(2)(n) of Penal Code, 1860; Article 21 of the
Constitution of India; Minor; Penetrative sexual assault on minor;
Lawful guardian; Evidence of enticing the victim; Out of the
keeping of the lawful guardian of minor; Judgment; Essentials of
Judgment; Object of writing a judgment; Judge's personal opinions;
Advisory jurisdiction; Rape; Consent; Romantic relationship;
Sexual exploitation and sexual abuse of children; Kidnapping;
Exercise of Plenary Powers; Quashing of order of conviction;
Quashing the order of conviction on the grounds of settlement
or by consent; Obligation of State under POCSO; Child Welfare
Committee under Juvenile Justice (Care and Protection of
Children) Act, 2015; Care; Protection; Treatment; Development
and rehabilitation of children in need of care and protection;
Financial support to any child living in a child care institution;
Child's re-integration into mainstream society; Informed choice to
victim; Fundamental right to live; Dignified life; Welfare measures.
Case Arising From
ORIGINAL/APPELLATE JURISDICTION: Suo Motu Writ Petition (C)
No. 3 of 2023
(Under Article 32 of The Constitution of India)
With
Criminal Appeal No.1451 of 2024
582
[2024] 8 S.C.R.
Digital Supreme Court Reports
Appearances for Parties
Ms. Madhavi Divan, Ms. Liz Mathew, Sr. Advs., (Amicus Curiae),
Huzefa Ahmadi, Sr. Adv., Ms. Nidhi Khanna, Sameer Choudhary, Ms.
Aishani Narain, Ms. Aandrita Deb, Subham Saigal, Ms. Bagavathy
Vennimalai, Ms. Mallika Agarwal, Ms. Astha Sharma, Sanjeev
Kaushik, Shreyas Awasthi, Ms. Rashmi Singh, Ms. Lihzu Shiney
Konyak, Dibyadyuti Banerjee, Ms. Sumedha Halder, Ms. Sunita
Kumari, Abhijit Sengupta, Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
Abhay S. Oka, J.
FACTUAL ASPECTS
1.
Criminal Appeal no.1451 of 2024 has been preferred by the State of
West Bengal, aggrieved by the judgment and order dated 18th October
2023, passed by a Division Bench of the High Court of Judicature at
Calcutta. The learned Special Judge appointed under the Protection
of Children from Sexual Offences Act, 2012 (for short, 'the POCSO
Act'), Baruipur, South 24 Parganas, convicted the accused for the
offences punishable under Section 6 of the POCSO Act and Sections
363 and 366 of the Indian Penal Code, 1860 (for short, 'the IPC').
For the offence punishable under Section 6 of the POCSO Act, the
accused was sentenced to undergo rigorous imprisonment for twenty
years and pay a fine of Rs.10,000/-. He was sentenced to rigorous
imprisonment for four and five years, respectively, for the offences
punishable under Sections 363 and 366 of the IPC. Though the
learned Special Judge under the POCSO Act concluded that the
accused was guilty of the offences punishable under clause (n) of
sub-section (2) and sub-section (3) of Section 376 of the IPC, in view
of the sentence imposed for the offence punishable under Section 6
of the POCSO Act, no separate punishment was imposed.
2.
The victim girl was fourteen years old at the time of the incident. The
victim's mother lodged a First Information Report (FIR) on 29th May
2018. The victim's mother stated in her complaint that the victim,
who was her minor daughter, escaped from her home at 5:30 p.m.
on 20th May 2018 without informing anyone. On inquiry, it was found
that the accused enticed her to leave her house. The accused did so
[2024] 8 S.C.R.
583
In Re: Right To Privacy of Adolescents
with the help of his two sisters. The victim's mother repeatedly visited
the house of the accused and requested him to facilitate the return
of her daughter. However, the victim did not come back. A female
child was born to the victim. Admittedly, the accused is the biological
father of the child. There was a gross delay in the investigation, and
the accused was arrested on 19th December 2021. The chargesheet
was filed on 27th January 2022 against the accused for the offences
for which he was convicted. In addition, the accused was charged
with the offence punishable under Section 9 of the Prohibition of Child
Marriage Act, 2006. The prosecution examined seven witnesses. We
may note here that as the learned Special Judge under the POCSO
Act found that there was no evidence of marriage between the victim
and the accused, the charge under Section 9 of the 2006 Act was
held as not substantiated.
3.
By the impugned judgment, the High Court held that the offences
punishable under Sections 363 and 366 of the IPC were not made
out, and therefore, the High Court acquitted the accused for the
said two offences. Considering the factual scenario that the High
Court noticed, it purported to exercise its jurisdiction under Article
226 of the Constitution of India read with Section 482 of the Code
of Criminal Procedure, 1973 (for short, 'the Cr. PC') to set aside the
conviction of the accused for the offences punishable under Section
6 of the POCSO Act and sub-sections 2(n) and (3) of Section 376
of the IPC. The High Court noted that the mother of the victim had
disowned her and therefore, the victim was continuously residing
with the accused along with their minor child.
4.
The Suo Motu writ petition was initiated based on the directions issued
by the Hon'ble Chief Justice of India for challenging the impugned
judgment. The State Government has preferred the criminal appeal
to challenge the order of acquittal.
5.
Considering the nature of the observations made by the High Court
and the findings recorded by it, this Court appointed Ms. Madhavi
Divan and Ms. Liz Mathew, the learned senior counsel, as amicus
curiae to assist the Court. Both of them have rendered valuable
assistance to the Court. Along with them, Ms. Nidhi Khanna,
Advocate-on-Record, has also assisted the Court. We have heard
Mr.Huzefa Ahmadi, the learned senior counsel appearing for the
State Government and the learned counsel representing the accused
584
[2024] 8 S.C.R.
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and the victim. The learned senior counsel for the State Government
has taken a fair stand. The accused and the victim are on the same
page and want to continue their cohabitation.
ANALYSIS OF EVIDENCE
6.
We have perused the evidence of the prosecution witnesses and
the statement of the accused under Section 313 of the Cr. PC. From
the statement and the evidence on record, it becomes an admitted
position that the age of the victim on the date of the incident was
fourteen years, and the age of the accused was about twenty-five
years. When the statement of the accused was recorded, the age of
the victim's daughter was about ten months. Though it is the case
of the prosecution that the marriage between the accused and the
victim was solemnised on 20th May 2018 in a temple, there is no
evidence adduced by the prosecution on this aspect.
7.
The evidence of the victim reveals that she also claimed that she
married the accused. She stated that her daughter was ten months
old. She stated in the cross-examination that she left her house of
her own will and married the accused. She stated that since the
year 2019, she has been residing in the house of the accused. She
stated in the cross-examination that she would like to stay in the
house of the accused.
8.
The first informant, the victim's mother, deposed that on 20th May
2018, the victim was fourteen years and three months old. She
produced the victim's birth certificate in the evidence. She stated that
her daughter was kept in Narendrapur Sanlaap home, from where
she was brought to her house. After staying in the house for a few
months, she again went to the house of the accused.
9.
We are not referring to the medical evidence as it is an admitted
position that the accused kept physical relations with the victim,
and the victim has given birth to a female child. There is no dispute
that the accused is the biological father of the child. There is no
explanation for the gross delay in investigation and the delay in
arresting the accused. As stated earlier, the accused was arrested
on 19th December 2021. Later on, he was enlarged on bail.
GUILT OF THE ACCUSED
10. Section 6 of the POCSO Act reads thus:
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In Re: Right To Privacy of Adolescents
"6. Punishment for aggravated penetrative sexual
assault.- Whoever, commits aggravated penetrative
sexual assault, shall be punished with rigorous imprisonment
for a term which shall not be less than ten years but which
may extend to imprisonment for life and shall also be
liable to fine."
'Penetrative sexual assault' is defined under Section 3 of the POCSO
Act. In this case, there is no dispute about the fact that the accused
committed penetrative sexual assault on the victim. As the victim
became pregnant as a consequence of the sexual assault, in view
of sub-clause (ii) of clause (j) of Section 5 of the POCSO Act, it
became a case of aggravated penetrative sexual assault. On facts,
there cannot be any dispute that the commission of the offence
punishable under Section 6 of the POCSO Act by the accused was
duly proved.
11. Under Section 375 of the IPC, having penetrative intercourse with
a victim who is under 18 years of age with or without her consent
becomes an offence of rape. As the offence was repeatedly committed
on the victim, clause (n) of sub-section (2) of Section 376 of the
IPC is attracted. Therefore, the accused was liable to be punished
in accordance with Section 376(2)(n) of the IPC. Sub-section (3) of
Section 376 provides for a minimum punishment of twenty years for
the offence of rape when the victim is less than sixteen years of age.
12. Section 361 of the IPC defines "Kidnapping from lawful guardianship".
The said provision reads thus:
"361. Kidnapping from lawful guardianship.-Whoever
takes or entices any minor under sixteen years of age if a
male, or under eighteen years of age if a female, or any
person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind, without
the consent of such guardian, is said to kidnap such minor
or person from lawful guardianship."
In the facts of the case, there is no evidence to prove that the accused
took the victim out of the keeping of the lawful guardian. Similarly,
there is no evidence of enticing the victim. The mother of the victim
deposed that the victim left her house on her own. That is also
the version of the victim. Hence, the prosecution did not establish
kidnapping. Therefore, the offences punishable under Sections 363
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and 366 of the IPC are not made out. But, there is no doubt that the
offences punishable under Section 6 of the POCSO Act and Subsections (2)(n) and (3) of Section 376 of the IPC were made out.
JUDGMENT
13. When a Court deals with an appeal against an order of conviction,
the judgment must contain (i) a concise statement of the facts of the
case, (ii) the nature of the evidence adduced by the prosecution and
the defence, if any, (iii) the submissions made by the parties, (iv) the
analysis based on the reappreciation of evidence, and (v) the reasons
for either confirming the guilt of the accused or for acquitting the
accused. The appellate court must scan through the evidence, both
oral and documentary, and reappreciate it. After reappreciating the
evidence, the appellate court must record reasons for either accepting
the evidence of the prosecution or for disbelieving the evidence of
the prosecution. The Court must record reasons for deciding whether
the charges against the accused have been proved. In a given case,
if the conviction is confirmed, the Court will have to deal with the
legality and adequacy of the sentence. In such a case, there must
be a finding recorded on the legality and adequacy of the sentence
with reasons. The ultimate object of writing a judgment is to ensure
that the parties before the Court know why the case is decided in
their favour or against them. Therefore, judgment must be in a simple
language. The conclusions recorded by the Court in the judgment
on legal or factual issues must be supported by cogent reasons.
14. No doubt, the Court can always comment upon the conduct of the
parties. However, the findings regarding the conduct of the parties
must be confined only to such conduct which has a bearing on the
decision-making. A judgment of the Court cannot contain the Judge's
personal opinions on various subjects. Similarly, advisory jurisdiction
cannot be exercised by the Court by incorporating advice to the
parties or advice in general. The Judge has to decide a case and
not preach. The judgment cannot contain irrelevant and unnecessary
material. A judgment must be in simple language and should not
be verbose. Brevity is the hallmark of quality judgment. We must
remember that judgment is neither a thesis nor a piece of literature.
However, we find that the impugned judgment contains personal
opinion of the Judges advice to the younger generation and advice
to the legislature.
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OBJECTIONABLE PORTIONS OF THE IMPUGNED JUDGMENT
15. Ms Madhavi Divan, the learned senior counsel appointed as amicus
curiae, has culled out the portions of the impugned judgment which,
according to her, are highly objectionable. We are reproducing the
same:
i.
"We feel it prudent to mention here that we noticed
a rustic lady with a rumpled saree and unkempt hair,
looking more aged than her age standing in a corner
of the Court with a baby in her arms." (Para 2)
ii.
"[...]Non-exploitative sexual relationship without
any intent is in rise among adolescents in our
country. We may only say that may be for the reason
of climatic change, change in food habits etc. girls
are attaining puberty now-a-days in a younger age
and sexuality develop in them very early may be
owing to peer pressure, influence by social media,
free availability of porn materials and free mixing with
friends of opposite sex in a taboo free atmosphere.
This being, however, sociological study by experts,
we do not want to comment on these aspects. To
top it all we do not want to go to the pathology of
the offence(s) statutorily outlined in the POCSO Act."
(Para 13)
iii.
"The discussion so far stresses on a "Rights
based approach" so far as adolescents are
concerned. We may sound narrow in our view,
but the practicality of the facts is that a "Rights
based approach" as a panacea for all the problems
that come is not the solution, and in our view, not
the just and correct approach. For conferring the
Rights suggested in the aforesaid discussion on
the "captioned group" i.e. adolescents between
the age fold of 16 to 18 in "romantic relationship",
some test are to be satisfied first. Those are:
i)
Whether conferment of suggested Rights
on the "captioned group" is/are in their
best interest?
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ii)
Whether the captioned group has the
discretion and maturity to use that Rights
for their best interest?
iii)
Whether such rights at such age is
conducive for over all development of their
personality or it is destructive of their self
development?
iv)
Who are the persons on whom such Rights
are to be conferred, are they disciplined
adolescents or a wayward lot, who have
no control on their trivial urge to have sex?
v)
Whether conferment of such Rights on the
captioned group is in the best interest of
the society?" (para 29)
iv.
"To find answers to these tests opinions of some
individuals, Rights activists, or view of so called
liberals are not at all sufficient. [...]" (Para 29.1)
v.
"Fundamental Rights in the Constitution and various
other Rights in different statutes have been given
to individuals for a balance in society, to check
arbitrariness of the Government and development
of best self of an individual. If we go deep into our
old texts, we find that Rights are not conferred
but they are earned by action of an individual. If
we look at Bentham's theory, it is found that every
right has corresponding duty/duties or obligation/
obligations. By performing the obligation, you have
to earn the Right/Rights. It is somewhat similar to
the old oriental philosophy "Do your duty and earn
your Right." (para 30)
vi.
"The principal androgenic steroid is testosterone,
which is secreted primarily from the testes in men
and ovaries in women and in small amounts from
the adrenal glands, both in men and women.
Hypothalamus and pituitary gland control the amount
of testosterone, which is primarily responsible for
sex urge and libido (in men). It's existence is there
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In Re: Right To Privacy of Adolescents
in the body, so when the respective gland becomes
active by stimulation, sexual urge is aroused. But
activation of the respective responsible gland is
not automatic. It needs stimulation by our sights,
hearing, reading erotic materials and conversation
with opposite sex. So sexual urge is created by
our own action. Sex in adolescents is normal but
sexual urge or arousal of such urge is dependent
on some action by the individual, may be a man
or woman. Therefore, sexual urge is not at all normal
and normative. If we stop some actions), arousal of
sexual urge, as advocated in our discussion supra,
ceases to be normal." (Para 30.1)
vii. "Ask any parents of an adolescent, may be a boy or
girl, you shall get the answer how difficult it is to give
a right upbringing to him/her in view of free flow of
negative materials from the web and social media,
which hamper their thinking process and living. We,
therefore, propose to take a "Duty/obligation
based approach" to the issue in hand." (Para 30.2)
viii. "It is the duty/obligation of every female adolescent to:
(i)
Protect her right to integrity of her body.
(ii)
Protect her dignity and self-worth.
(iii) Thrive for overall development of her self
transcending gender barriers.
(iv) Control sexual urge/urges as in the eyes
of the society she is the looser (sic) when
she gives in to enjoy the sexual pleasure of
hardly two minutes.
(v)
Protect her right to autonomy of her body and
her privacy.
It is the duty of a male adolescent to respect the
aforesaid duties of a young girl or woman and he
should train his mind to a respect a woman, her self
worth, her dignity & privacy, and right to autonomy
of her body." (Para 30.3)
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ix.
"[...] Similarly, parental guidance and education so far
as boys are concerned is to include how to respect
a woman; how to keep dignity of a woman; how to
protect the integrity of body of a woman; and how to
befriend a woman without being aroused by sexual
urge even if there is advances from the other side
till he becomes capable to maintain a family. [.]."
(Para 31)
x.
"We do not want our adolescents to do anything that
shall push them from dark to darker side of life. It is
normal for each adolescent to seek the company
of opposite sex but it is not normal for them to
engage in sex devoid of any commitment and
dedication. We want them to spread their wings
high with a view to realise their best selves. Sex
shall come automatically to them when they
grow self-reliant, economically independent
and a person which they dreamt one day to be.
Along with sex in such a stage shall come love with
commitment and dedication towards each other
as they shall have the discretion and maturity to
understand each other, adjust with each other and
forgive each other. We beseech our adolescents
to follow a salutary legal principle of Mahabharata
"Dharmo Rakshyati Rakshyita" (one who protects
law is protected by law) and proceed in their path of
self-development without being influenced by bashful
urge of urgent sex." (Para 32)
xi.
"So far as the case of criminalisation of romantic
relationship between two adolescents of opposite
sex is concerned it should better be left to the
wisdom of the judiciary. Each judiciary in the world
has the nicety of pluralism. Each individual judge has
his/her own opinion. He/She has his/her own unique
style of addressing an issue. [..] We are, therefore, of
the view that the grey area of adolescent consensual
sex about which much commotion is made should
be left to the discretion and wisdom of the judiciary.
It is also found from decisions of different Hon'ble
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High Courts that such matters have been dealt with
in proper perspective taking into consideration the
peculiarity of case placed before the court" (Para 33)
xii. "Coming to the present case we find that this
is a case of non-exploitative consensual sexual
relationship between a minor girl and an older
adolescent or may be a young adult. [...]" (Para 38)
xiii. "In the present case things are even on better footing.
The girl was 14+ when the occurrence happened. The
boy was also an old adolescent or a young adult at
that time. [.]" (Para 39)"
(emphasis added)
15.1 We need not waste pages dealing with every observation/
finding quoted above. The observations are utterly irrelevant for
deciding the controversy. To say the least, these observations
are shocking, which will ex-facie invite a finding of perversity.
REASONS RECORDED BY THE HIGH COURT FOR ACQUITTAL
16. Now, we come to the reasons recorded by the Division Bench. The
Division Bench has invited a very peculiar concept of "non-exploitative
sexual acts" while dealing with the offences punishable under Section
376(2)(n) of the IPC and Section 6 of the POCSO Act. 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 "nonexploitative"? In paragraph 17, the High Court refers to "marital
rape". In this case, there is no evidence of marriage. The Bench
has also invented a non-existent category of "older adolescents" and
lamented about the lack of recognition of the consensual behaviour
of older adolescents. We fail to understand this concept of "older
adolescents". Further, the Division Bench goes on to observe that
sexual behaviour in adolescents, particularly from the onset of puberty,
is established as being a natural, normative and integral part of an
adolescent's development.
17. We must deal with some of the observations made by the High
Court. 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
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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. The Court, surprisingly, carved out
a non-existing category of romantic cases in the rape cases. While
dealing with the offences under the POCSO Act, shockingly, the
Court observed that the law undermines the identity of adolescent
girls by casting them as victims, thereby rendering them voiceless.
The Court says that, on the other hand, adult boys are discriminately
treated as children in conflict with the law. Thereafter, in paragraph
25, the Court proceeded to criticise the POCSO Act by observing
that it clubs all persons below eighteen years without considering
their developing sexuality, evolving capacity and the impact of such
criminalisation on their best interests. In paragraph 28, the Court went
further. It held that instead of protecting the adolescents from abuse,
the law exposes them in factually consensual and non-exploitative
relationships to the risk of criminal prosecution. It compromises the
mandate of protecting the children. Therefore, the Court observes
that an amendment is necessary 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.