# MS. EERA THROUGH DR. MANJULA KRIPPENDORF v. STATE (GOVT. OF NCT OF DELHI) & ANR

- **Citation:** [2017] 7 S.C.R. 924
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Criminal Appeal Nos. 1217-1219 of 2017
- **Bench:** Dipak Misra, R. F. Nariman
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ms-eera-through-dr-manjula-krippendorf-v-state-govt-of-nct-of-delhi-anr-32136
- **Pages:** 101

## Headnote

Protection of Children from Sexual Offences Act, 2012:
Object of its legislation - Discussed. (Per Dipak Misra, J.)
s.2(d) - Age - Term 'age' does not include mental age - The
Parliament felt it appropriate that the definition of the term "age"
by chronological age or biological age to be the safest yardstick
than referring to a person having mental retardation - It may be
due to the fact that the standards of menta1 retardation are different
D
and they require to be determined by an expert body - The degree
is also different - By saying that "age" covers "mental age", has
the potential to create immense anomalous situations without there
being any guidelines or statutory provisions - Juvenile Justice (Care
and Protection of Children) Rules, 2000 - r.12 - Juvenile Jmtice
E
F
(Care and Protection of Children) Act, 2015-s.2(12)- Crime against
children. (Per Dipak Misra, J.)
s.2(d)-Age - The statutes mentions "child's" mental disability
and not an adult's - A reading of the Act as a whole in the light of
the Statement of Objects and Reasons makes it clear that the intention
of the legislator was to focus on children, as commonly understood
i.e. persons who are physically under the age of 18 years - The
golden rule in determining whether the judiciary has crossed the
Lakshman Rekha in the guise of interpreting a statute is really
whether a Judge has only ironed out the creases that he found in a
statute in the light of its object, or whether he has altered the material
G of which the Act is woven - In short, the difference is the we/1known philosophical difference between "is" and "ought'·' - If the
Judge adds something more than what there is in the statute by way
of a supposed intention of the legislator and go beyond creative
interpretation of legislation to legislating itself, he crosses the
Lakshman Rekha and becomes a legislator, stating what the law
H
924
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE
(GOVT. OF NCT OF DELHI)
ought to be instead of what the law is - A scrutiny of other statutes
in pari materia would bring this into sharper focus - The Medical
Termination of Pregnancy Act, 1971, brings into sharpfocus the
distinction between "mentally ill persons" and "minors" - s.3(4)(a)
of the 1971 Act again makes it clear that when "the age of 18
years" occurs in a statute, it has reference only to physical age -
The distinction between a female who is a minor and an adult woman
who is mentally ill is again brought into sharp focus by the statute
itself - It must, therefore, be held that Parliament, when it made the
2012 Act, was fully aware of this distinction, and yet cho.se to protect
only children whose physical age was below 18 years - A perusal
of the provisions of the Mental Healthcare Act, 2017 would again
show that a distinction is made between a mentally ill person and a
minor - Similarly, the Rights of Persons with Disabilities Act, 2016
maintains the selfsame distinction -
A perusal of ss.2, 4, 9, 18 and
31 of 2016 Act would show that children with disabilities are dealt
with separately and differently from persons with disabilities - As a
contrast to the 2012 Act, the National Trust for Welfare of Persons
with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, I999 would make it clear that whichever person is
affected by mental retardation, in the broader sense, is a ·person
with disability" under the Act, who gets protection - A reading of
the Objects and Reasons of the 1999 Act together with the provisions
contained therein would show that whatever is the physical age of
the person affected, such person would be a ''person with disability"
who would be governed by the provisions of the said Act -
Conspicuous by its absence is the reference to any age when it
comes to protecting persons with disabilities under the said Act -
Thus, it is clear that viewed with the lens of the legislator, violence
would be done both to the intent and the language of Parliament if
the word "mental" is read

## Text

_Characters 0–39,961 of 237,055. This is a partial read: ask again with offset=39961 for what follows._

[2017] 7 S.C.R. 924
A
MS. EERA THROUGH DR. MANJULA KRIPPENDORF
B
c
v.
STATE (GOVT. OF NCT OF DELHI) & ANR.
(Criminal Appeal Nos. 1217-1219 of 2017)
JULY21, 2017
[DIPAK MISRA AND R. F. NARIMAN, JJ.]
Protection of Children from Sexual Offences Act, 2012:
Object of its legislation - Discussed. (Per Dipak Misra, J.)
s.2(d) - Age - Term 'age' does not include mental age - The
Parliament felt it appropriate that the definition of the term "age"
by chronological age or biological age to be the safest yardstick
than referring to a person having mental retardation - It may be
due to the fact that the standards of menta1 retardation are different
D
and they require to be determined by an expert body - The degree
is also different - By saying that "age" covers "mental age", has
the potential to create immense anomalous situations without there
being any guidelines or statutory provisions - Juvenile Justice (Care
and Protection of Children) Rules, 2000 - r.12 - Juvenile Jmtice
E
F
(Care and Protection of Children) Act, 2015-s.2(12)- Crime against
children. (Per Dipak Misra, J.)
s.2(d)-Age - The statutes mentions "child's" mental disability
and not an adult's - A reading of the Act as a whole in the light of
the Statement of Objects and Reasons makes it clear that the intention
of the legislator was to focus on children, as commonly understood
i.e. persons who are physically under the age of 18 years - The
golden rule in determining whether the judiciary has crossed the
Lakshman Rekha in the guise of interpreting a statute is really
whether a Judge has only ironed out the creases that he found in a
statute in the light of its object, or whether he has altered the material
G of which the Act is woven - In short, the difference is the we/1known philosophical difference between "is" and "ought'·' - If the
Judge adds something more than what there is in the statute by way
of a supposed intention of the legislator and go beyond creative
interpretation of legislation to legislating itself, he crosses the
Lakshman Rekha and becomes a legislator, stating what the law
H
924
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE
(GOVT. OF NCT OF DELHI)
ought to be instead of what the law is - A scrutiny of other statutes
in pari materia would bring this into sharper focus - The Medical
Termination of Pregnancy Act, 1971, brings into sharpfocus the
distinction between "mentally ill persons" and "minors" - s.3(4)(a)
of the 1971 Act again makes it clear that when "the age of 18
years" occurs in a statute, it has reference only to physical age -
The distinction between a female who is a minor and an adult woman
who is mentally ill is again brought into sharp focus by the statute
itself - It must, therefore, be held that Parliament, when it made the
2012 Act, was fully aware of this distinction, and yet cho.se to protect
only children whose physical age was below 18 years - A perusal
of the provisions of the Mental Healthcare Act, 2017 would again
show that a distinction is made between a mentally ill person and a
minor - Similarly, the Rights of Persons with Disabilities Act, 2016
maintains the selfsame distinction -
A perusal of ss.2, 4, 9, 18 and
31 of 2016 Act would show that children with disabilities are dealt
with separately and differently from persons with disabilities - As a
contrast to the 2012 Act, the National Trust for Welfare of Persons
with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, I999 would make it clear that whichever person is
affected by mental retardation, in the broader sense, is a ·person
with disability" under the Act, who gets protection - A reading of
the Objects and Reasons of the 1999 Act together with the provisions
contained therein would show that whatever is the physical age of
the person affected, such person would be a ''person with disability"
who would be governed by the provisions of the said Act -
Conspicuous by its absence is the reference to any age when it
comes to protecting persons with disabilities under the said Act -
Thus, it is clear that viewed with the lens of the legislator, violence
would be done both to the intent and the language of Parliament if
the word "mental" is read into s.2(l)(d) of the 2012 Act. (Per R.F.
Nariman, J.) [Concurring]
Interpretation of statutes - Purposive construction - There is
no quarrel over the proposition that while interpreting social welfare
legislations, the method of purposive construction has to be adopted
keeping in view the text and the context of the legislation, the mischief
it intends to obliterate and the fundamental intention of the
legislature - If the purpose is defeated, absurd result is arrived at.
(Per Dipak Misra, J.)
925
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[2017] 7 S.C.R.
A
Code Criminal Procedure, 1973: s.357A
~ Victim
Compensation scheme - It is the District Legal Service Authority or
the State Legal Service Authority who have to decide the quantum
of compensation to be awarded under the scheme prepared by the
State Government in coordination with the Central Government -
B In the instant rape case, since victim is certified to be mentally
disabled person and is fighting the !is for sometime under the POCSO
Act, State Legal Service Authority is directed to award compensation
keeping in view scheme framed by the Delhi Government - In view
of special feature of the case, the victim should be granted the
maximum compensation as envisaged under the scheme. (Per Dipak
C Misra, J.)
Disposing of the appeals, the Court
HELD:
Per Dipak Misra, J.
D
1.1 The pivotal issue that emanates for consideration in
these appeals pertains to interpretation of Section 2(d) of the
Protection of Children from Sexual Offences Act, 2012 (POCSO
Act), and the primary argument for the appellant is that the
definition in Section 2( d) that defines "child" to mean any person
E
below the age of 18 years, should engulf and embrace, in its
connotative expanse, the "mental age" of a person or the age
determined by the prevalent science pertaining to psychiatry so
that a mentally retarded person or an extremely intellectually
challenged person who even has crossed the biological age of 18
years can be included within the holistic conception of the term
F
"child". [Para 2] [939-B-D]
G
H
Gurmej Singh v. Pratap Singh Kairon AIR 1960 SC
122 - followed.
State of Himachal Pradesh & another v. Kai/ash Chand
Mahajan & others (1992) Suppl. 2 SCC 351 : (1992]
1 SCR 917 - relied on.
Reena Banerjee & another v. Govt. (NCT of Delhi) and
others (2015) 11 SCC 725; Mofil Khan & another v.
State of Jharkhand (2015) 1 SCC 67 : [2014] to SCR
812; Bharat Singh v. Management of New Delhi
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE
(GOVT. OF NCT OF DELHI)
Tuberculosis Centre, New Delhi and others (1986) 2
SCC 614 : [1986] 2 SCR 169; Githa Hariharan (Ms.)
and another v. Reserve Bank of India and another
(1999) 2 SCC 228: [1999) 1 SCR 669; Union of India
v. Prabhakaran Vijaya Kumar and others (2008) 9 SCC
527 : [2008] 7 SCR 673; Regional Provident Fund
Commissioner v. Hooghly Mills Company Limited and
others (2012) 2 SCC 489 : [2012) 1 SCR 363;
Bangalore Turf Club Limited v. Regional Director,
Employees' State Insurance Corporation (2014) 9 SCC
657 : [2014] 8 SCR 1021; Sheikh Gu/fan & others v.
Sanat Kumar Ganguli AIR 1965 SC 1839: [1965) SCR
364; Yudhishter v. Ashok Kumar (1987) 1 SCC 204 :
[1987) 1 SCR 516; Ogg-Moss v. R [1984) 2 SCR 173;
P.K. Unni v. Nirmala Industries and others (1990) 2
SCC 378 : [1990) 1 SCR 483; Lt. Col. Prithi Pal Singh
Bedi etc. v. Union of India and others (1982) 3 SCC
140 : [1983) 1 SCR 393; Commissioner of Income-tax,
Madhya Pradesh v. Shrimati Sodra Devi AIR 1957 SC
832 : [1958) SCR 1; Arn it Das v. State of Bihar (2000)
5 SCC 488 : [2000) 1 Suppl. SCR 69; Umesh Chandra
v. State of Rajasthan (1982) 2 SCC 202 : [1982] 3 SCR
583; Shankar Kisanrao Khade v. State of Maharashtra
(2013) 5 SCC 546 : [2013) 6 SCR 949; Chandra
Mohan v. State <?f Uttar Pradesh and others AIR 1966
SC 1987 - referred to.
R. v. Sharpe BCCA 1999 416; R v. Cockerton [1901]
1 KB 726; Cabell v. Markhan 148 F 2d 737 (2d Cir
1945) ; Regina (Quintava!le) v. Secretary of State for
Health [2003) UKHL 13 : [2003] 2 AC 687 : [2003) 2
WLR 692 (HL); Abhiram Singh v. C.D. Commachen
(dead) by legal representatives and others (2017) 2 sec
629 : [2017] 1 SCR 158; Nairn v. University of St.
Andrews 1909 AC 147 - referred to.
1.2 It is the foremost duty of the Court while construing a
provision to ascertain the intention of the legislature, for it is an
accepted principle that the legislature expresses itself with use
of correct words and in the absence of any ambiguity or the
927
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SUPREME COURT REPORTS
[2017] 7 S.C.R.
A resultant consequence does not lead to any absurdity, there is no
room to look for any other aid in the name of creativity. There is
no quarrel over the proposition that the method of purposive
construction has been adopted keeping in view the text and the
context of the legislation, the mischief it intends to obliterate
B
c
and the fundamental intention of the legislature when it comes to
social welfare legislations. If the purpose is defeated, absurd
result is arrived at. The Court need not be miserly and should
have the broad attitude to take recourse to in supplying a word
wherever necessary. While interpreting a social welfare or
beneficent legislation, one has to be guided by the 'colour',
'content' and the 'context of statutes' and if it involves human
rights, the conceptions of Procrustean justice and Lilliputtian
hollowness approach should be abandoned. The Judge has to
release himself from the chains of strict linguistic interpretation
and pave the path that serves the soul of the legislative intention
D and in that event, he becomes a real creative constructionist
Judge. The Court has evolved the principle that the legislative
intention must be gatherable from the text, content and context
of the statute and the purposive approach should help and enhance
the functional principle of the enactment. That apart, if an
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interpretation is likely to cause inconvenience, it should be
avoided, and further personal notion or belief of the Judge as
regards the intention of the makers of the statute should not be
thought of. And for adopting the purposive approach there must
exist the necessity. The Judge, assuming the role of creatively
constructionist personality, should not wear any hat of any colour
to suit his thought and idea and drive his thinking process to
wrestle with words stretching beyond a permissible or acceptable
limit. That has the potentiality to cause violence to the language
used by the legislature. Quite apart from, the Court can take aid
of causus omissus, only in a case of clear necessity and further it
should be discerned from the four corner of the statute. If the
G meaning is intelligible, the said principle has no entry. It cannot
be a ready tool in the hands of a Judge to introduce as and what
he desires. [Para 62) [970-A-H; 971-A]
H
R.MD. Chamarbaugwalla and another v. Union of
India and another AIR 1957 SC 628 : [1957] SCR
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE
(GOVT. OF NCT OF DELHI)
930; Directorate of Enforcement v. Deepak Mahajan
and another (1994) 3 SCC 440 : [1994] 1 SCR 445;
Pratap Singh v. State of Jharkhand and another (2005)
3 SCC 551 : (2005] 1 SCR 1019; Hindustan Lever Ltd.
v. Ashok Vishnu Kate and others (1995) 6 SCC 326 :
[1995] 3 Suppl. SCR 702 - relied on.
Workmen of American Express International Banking
Corporation v. Management of American Express
International Banking Corporation (1985) 4 SCC 71;
Ajitsinh Arjzmsinh Gohil v. Bar Council of Gujarat and
another (2017) 5 SCC 465; Atma Ram Mittal v. Ishwar
Singh Punia (1988) 4 SCC 284 : [ 1988] 2 Suppl. SCR
528; S. Copa/ Reddy v. State of A.P (1996) 4 SCC 596:
(1996] 3 Suppl. SCR 439; High Court of Gujarat and
another v. Gujarat Kishan Mazdoor Panchayat and
others (2003) 4 SCC 712 : [2003] 2 SCR 799;
Raghunandan Saran Ashok Saran v. Pearey Lal
Workshop (1986) 3 SCC 38 : (1986] 2 SCR 537;
Commissioner of Income Tax, Bangalore v. J.H. Got/a
(1985) 4 SCC 343: (1985] 2 Suppl. SCR 711; Polestar
Electronic (Pvt.) Ltd. v. Additional Commissioner, Sales
Tax and another (1978) 1 SCC 636 : (1978] 3 SCR
98; Kehar Singh & Ors v. State (Delhi Admn.) (1988) 3
SCC 609 : (1988] 2 Suppl. SCR 24; Gem Granites v.
Commissioner of Income Tax, T.N. (2005) 1 SCC 289 :
[2004] 6 Suppl. SCR 332; Reserve Bank of India v.
Peerless General Finance and Investment Co. Ltd. &
others (1987) 1 SCC 424 : [1987] 2 SCR 1; Union of
India v. Elphinstone Spinning and Weaving Co. Ltd. and
others (2001) 4 SCC 139 : [2001] 1 SCR 221;
Corocraft Ltd. v. Pan American Airways Inc. (1968) 3
WLR ,714, p.732; State of Haryana & others v.
Sampuran Singh & others (1975) 2 SCC 810 : (1976]
1 SCR 626; Central Bank of India v. State of Kera/a
and others (2009) 4 SCC 94 : (2009] 3 SCR 735;
Poppatlal Shah v. State of Madras AIR 1953 SC 274 :
(1953] SCR 677; Chief Justice of Andhra Pradesh &
others v. L. V.A. Dixitulu & others (1979) 2 SCC 34:
929
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SUPREME COURT REPORTS
[2017] 7 S.C.R.
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[1979] 1 SCR 26 - referred to.
B
c
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E
R (Wes/minister City Council) v. National Asylum Support
Service (2002) 1 WLR 2956 : (2002) 4 All ER 654
(HL) - referred to.
2. The POCSO Act, comprehensively deals with various
facets that are likely to offend the physical identity and mental
condition of a child. The legislature has dealt with sexual assault,
sexual harassment and abuse with due regard to safeguard the
interest and well being of the children at every stage of judicial
proceeding in an extremely detailed manner. The procedure is
child friendly and the atmosphere as commanded by the provisions
of the POSCO Act has to be congenial. The protection of the
dignity of the child is the spine of the legislation. It also lays
stress on mental physical disadvantage of a child. It takes note
of the mental disability. [Para 63] [971-C-D)
Daniel Johannes Stephanus Van Der Bank v. The State
[2014] ZAGPPHC 1017; Daniel Johannes Stephanus
Van Der Bank v. The State [2016] ZASCA 10; S v
Dayimani 2006 (2) SACR 594 (E); Director of Public
Prosecutions, Transvaal v. Minister of Justice and
Constitutional Development and others (2009) ZACC
8 : (2009) 4 SA 222 (CC) : (2009) 2 SACR 130 (CC) :
(2009) 7 BCLR 637 (CC); Her Majesty The Queen v.
D.A.I. [2012] 1 RCS 149 - referred to.
3. The legislature despite having the intent in its Statement
of Objects and Reasons and the long Preamble to the POCSO
F
Act, has thought it wise to define the term "age" which does not
only mention a child but adds the words "below the age of 18
years". Had the word "child" alone been mentioned in the Act,
the scope of interpretation by the Courts could have been in a
different realm and the Court might have deliberated on a larger
G canvass. It is not so. [Para 73] [979-C]
H
Suchita Srivastava & another v.
Chandigarh
Administration (2009) 9 SCC 1 - relied on.
Tulshidas Kanolkar v. State of Goa (2003) 8 SCC 590
: [2003] 4 Suppl. SCR 978 - held inapplicable.
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE
931
(GOVT. OF NCT OF DELHI)
4.1
The POCSO Act has identified minors and protected
A
them by prescribing the statutory age which has nexus with the
legal eligibility to give consent. The Parliament has felt .it
appropriate that the definition of the term "age" by chronological
age or biological age to be the safest yardstick than referring to
a person having mental retardation. It may be due to the fact that
B
the standards of mental retardation are different and they require
to be determined by an expert body. The degree is also different.
. The Parliament, as it seems, has not included mental age. It is
within the domain of legislative wisdom. A procedure for
determination of age had been provided under Rule 12 of the
Juvenile Justice (Care and Protection of Children) Rules, 2000.
C
The procedure was meant for determination of the biological age.
Section 2(12) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (2 of 2016) defines "child" to mean a person
who not completed eighteen years of age. There is a procedure
provided for determination of the biological age. Therefore, the D
Parliament has deliberately fixed the age of the child and it is in
the prism of biological age. If any determination is required, it
only pertains to the biological age, and nothing else. [Para 82)
(985-C-F)
Padma Szmdara Rao (Dead) and others v. State of T.N:
and others AIR 2002 SC 1334 : [2002) 2 SCR 383 -
followed.
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F
4.2 The purpose of POCSO Act is to treat the minors as a
class by itself and treat them separately so that no offence is
committed against them as regards sexual assault, sexual
harassment and sexual abuse. The sanguine purpose is to
safeguard the interest and well being of the children at every
stage of judicial proceeding. It provides for a child friendly
procedure. It categorically makes a distinction between a child
and an adult. A reading of the POCSO Act shows that it is gender
neutral. In such a situation, to include the perception of mental
G
competence of a victim or mental retardation as a factor will really
tantamount to causing violence to the legislation by incorporating
a certain words to the definition. By saying "age" would cover
"mental age" has the potential to create immense anomalous
situations without there being any guidelines or statutory
H
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SUPREME COURT REPORTS
[2017] 7 S.C.R.
provisions. They are within the sphere of legislature. An addition
of the word "mental" by taking recourse to interpretative process
does not come within the purposive interpretation as far as the
POCSO Act is concerned. If a victim is mentally retarded,
definitely the court trying the case shall take into consideration
whether there is a consent or not. In certain circumstances, it
would depend upon the degree of retardation or degree of
understanding. It should never be put in a straight jacket formula.
(Para 83) [985-G-H; 986-A-D)
5. Courts sometimes expand or stretch the meaning of a
phrase by taking recourse to purposive interpretation. A Judge
can have a constructionist approach but there is a limitation to
his sense of creativity. In the instant case, stretching of the
words "age" and "year" would be encroaching upon the legislative
function. (Para 85] [986-G-H; 987-A]
Francis Bennion s Statutory Interpretation (1984 edn.);
Maxwell on Interpretation of Statutes, 10th Edn., p. 19;
Maxwell on Interpretation of Statutes, Tenth Edn., at
p. 229; Principles of Statutory Interpretation by G.P.
Singh - referred to.
6. Section 357A Cr.P.C. makes it clear that when Court
makes a recommendation for compensation, the District Legal
Services Authority or the State Legal Services Authority is
required to decide the quantum of compensation to be awarded
under the Scheme prepared by the State Government in
coordination with the Central Government. The State/District
F
Legal Services Authority has to conduct an inquiry and award the
adequate compensation by completing the inquiry. Had the
accused been alive, the trial would have taken place in a Court of
Session as provided under the CrPC. As the accused has died
and the victim is certified to be a mentally disabled person and is
fighting the /is for some time to come within the purview of the
G POCSO Act wherein the trial is held in a different manner and
the provisions relating to the compensation are different, the State
Legal Services Authority, Delhi is directed to award the
compensation keeping in view the Scheme framed by the Delhi
Government. In view of special feature of the case, it is a fit case
H
where the victim should be granted the maximum compensation
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE
933
(GOVT. OF NCT OF DELHI)
as envisaged under the Scheme. (Para 88] (989-C-F]
A
Census Commissioner & others v. R. Krishnamurthy
(2015) 2 SCC 796 : [2014] 11 SCR 463 - followed.
State of Uttar Pradesh and others v. Subhash Chandra
Jaiswal and others (2017) 5 SCC 163 : [2016) 12 SCR
131 - relied on.
Per R.F. Nariman, J. (Concurring):
1. It is clear on a reading of English, U.S., Australian and
Indian Supreme Court judgments that the 'Lakshman Rekha '
B
has in fact been extended to move away from the strictly literal c
rule of interpretation back to the rule of the old English case of
Reydon, where the Court must have recourse to the purpose,
object, text, and context of a particular provision before arriving
at a judicial result. In fact, the wheel has turned full circle. It
started out by the rule as stated in 1584 in Heydon's case, which
was then waylaid by the literal interpretation rule laid down by D
the Priyy Council and the House of Lords in the mid t 800s, and
has come back to restate the rule somewhat in terms of what was
most felicitously put over 400 years ago in Heydon's case. (Para
24] (1004-E-F]
V.C. Rangadurai v. D. Gopalan & Others [1979) t SCR
1054; C.I.T. v. B.N. Bhattacharjee [1979) 3 SCR 1133;
Commissioner of Income Tax v. Distributor (Baroda) (P)
Ltd. (1972) 4 SCC 353 : [1972) 1 SCR 726; Union of
India v. Elphinstone Spinning and Weaving Co. Ltd. and
Ors. (2001) 4 sec 139 : (2001] 1 SCR 221; D.R.
Venkatachalam v. Deputy Transport Commissioner
(1977) 2 SCC 273 : [1977) 2 SCR 392; Reserve Bank
of India v. Peerless General Finance & Investment Co.
Ltd. and Others (1987) 1 SCC 424 : [1987) 2 SCR 1 -
referred to.
Heydon s case 76 E.R.637 [1584); Crawford v. Spooner
Moore's Indian Appeals, Volume 4 (1846 to 1850)
179; Grey v. Pearson, 1857 (6) HLC 61; Towne v.
Eisner, 245 U.S. 418; Commissioner of Internal Revenue
v. Ickelheimer, 132 Federal Reporter, 2d Series, 660;
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[2017] 7 S.C.R.
Kirby v. Leather 1965(2) All E.R. 441; Vandyk v. Oliver
(1976] 1 All ER 466; Boyse v. Rossborough 1857 6
HLC 61; Southern P. Co. v. Jensen 244 US 205; Oliver
Ashworth Ltd. v. Ballard Ltd. [1999] 2 All ER 791; R.
(Quintavalle) v. Secretary of State for Health [2003] 2
All E.R.113; CIC Insurance Limited v. Bankstown
Football Club Limited F.C. (1997) 187 CLR 384;
Archibald Cox in 60 Harv. Law Rev. 370, 1946-47 - ·
referred to.
2.1 The POSCO Act is a beneficial/penal legislation. Para
1 of the Statement of Objects and Reasons makes it clear that
the Act's reach is only towards the protection of children, as
ordinarily understood. The scope of the Act is to protect their
"childhood and youth" against exploitation and to see that they
are not abused. in any manner. Section 2(1)(d) defines "child" as
any person below the age of eighteen years." One look at this
D
definition would show that it is exhaustive, and refers to "any
person" an elastic enough expression, below the age of 18 years.
"Year" is defined under the General Clauses Act a year reckoned
according to the British calendar." This coupled with the word
"age" would make it clear that what is referred to beyond any
E
F
reasonable doubt is physical age only. [Paras 29-31] (1014-C;
1015-E-F, H; 1016-A-B]
2.2 It will be seen that when mental disability is spoken of,
it is expressly mentioned by the statute, and what is mentioned
is a "child's" mental disability and not an adult's. A reading of the
Act as a whole in the light of the Statement of Objects and Reasons
thus makes it clear that the intention of the legislator was to
focus on children, as commonly understood i.e. persons who are
physically under the age of 18 years. The golden rule in
determining whether the judiciary has crossed the Lakshman
Rekha in the guise of interpreting a statute is really whether a
G Judge has only ironed out the creases that he found in a statute
in the light of its object, or whether he has altered the material of
which the Act is woven. In short, the difference is the well-known
philosophical difference between "is" and "ought". Does the
Judge put himself in the place of the legislator and ask himself
whether the legislator intended a certain result, or does he state
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MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE
935
(GOVT. OF NCT OF DELHI)
that this must have been the intent of the legislator and infuse
A
what he thinks should have been done had he been the legislator.
If the latter, it is clear that the Judge then would add something
more than what there is in the statute by way of a supposed
intention of the legislator and would go beyond creative
interpretation of legislation to legislating itself. It is at this point B
that the Judge crosses the Lakshman Rekha and becomes a
legislator, stating what the law ought to be instead of what the
law is. A scrutiny of other statutes in pari materia would bring
this into sharper focus. The Medical Termination of Pregnancy
Act, 1971, again brings into sharp focus the distinction between
"mentally ill persons" and "minors". [Paras 32, 36 and 37] [1016C
D; 1017-C-G]
2.3 Section 3(4)(a) of the 1971 Act again makes it clear that
· when "the age of 18 years" occurs in a statute, it has reference
only to physical age. The distinction between a woman who is a
minor and an adult woman who is mentally ill is again brought D
into sharp focus by the statute itself. It must, therefore, be held
that Parliament, when it made the 2012 Act, was fully aware of
this distinction, and yet chose to protect only children whose
physical age was b~low 18 years. A perusal of the provisions of
the Mental Healthcare Act, 2017 would again show that a
distinction is made between a mentally ill person and a minor.
Under Section 14, every person who is not a minor shall have the
right to appoint a nominated representative, whereas under
Section 15, in case of minors, the legal guardian shall be their
nominated representative unless the concerned Board orders
otherwise, if grounds are made out under sub-section (2).
Similarly, the Rights of Persons with Disabilities Act, 2016
maintains the selfsame distinction. A perusal of the Sections 2, 4,
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. 9, 18 and 31 of 2016 Act would show that children with disabilities
are dealt with separately and differently from persons with
disabilities. Thus, Sections 4, 9 and 31 give certain rights to
children with disabilities as opposed to the other provisions, in
particular Section 18, which speaks of adult education and
participation thereof by persons with disabilities, obviously
referring to persons who are physically above 18 years of age. As
a contrast to the 2012 Act, the National Trust for Welfare of
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Persons with Autism, Cerebral Palsy, Mental Retardation and
Multiple Disabilities Act, 1999 would make it clear that whichever
person is affected by mental retardation, in the broader sense, is
a "person with disability" under the Act, who gets protection. A
reading of the Objects and Reasons of the 1999 Act together
B
with the provisions contained therein would show that whatever
is the physical age of the person affected, such person would be
a "person with disability" who would be governed by the
provisions of the said Act. Conspicuous by its absence is the
reference to any age when it comes to protecting persons with
disabilities under the said Act. Thus, it is clear that viewed with
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the lens of the legislator, violence would be done both to the
intent and the language of Parliament if the word "mental" is
read into Section 2(l)(d) of the 2012 Act. [Paras 38-42) (1018-E;
1021-C-E; 1022-F-H; 1023-A; 1024-E-G)
D
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H
La!ita Jalan v. Bombay Gas Co. Ltd. and Ors. (2003) 6
SCC 107 : [2003] 3 SCR 589; Iqbal Singh Marwah
and Another v. Meenakshi Marwah and Another (2005)
4 SCC 370 : (2005) 2 SCR 708; S. Gopal Reddy v.
State of A.P. (1996) 4 SCC 596 : (1996) 3 Suppl. SCR
439; Rajinder Singh v. State of Punjab (2015) 6 SCC
477: (2015) 2 SCR 835; N.K. Jain v. CK. Shah (1991)
2 SCC 495 : (1991) 1 SCR 938 - relied on.
Case Law Reference
In the Judgment of Dipak Misra, J.
(2015) u sec 725
referred to
(2014] 10 SCR 812
referred to
(2009) 9 sec 1
relied on
Para 10
Para 10
Para 10
(2003) 4 Suppl. SCR 978
held inapplicable Para 10
(1986) 2 SCR 169
referred to
Para 11
(1999) 1 SCR 669
referred to
Para 11
[2008) 7 SCR 673
referred to
Para 11
(2012) 1 SCR 363
referred to
Para 11
(2014) 8 SCR 1021
referred to
Para 11
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE
937
(GOVT. OF NCT OF DELHI)
(1965] SCR 364
referred to
Para 12
A
(1987] 1 SCR 516
referred to
Para 12
(2005] 1 SCR 1019
relied on
Para 12
(1994] 1 SCR 445
relied on
Para 12
[1984] 2 SCR 173
•
•C referred to
Para 14
B
[1990] 1 SCR 483
referred to
Para 14
[1983] 1 SCR 393
referred to
Para 14
[2017] 1 SCR 158
referred to
Para 28
AIR 1960 SC 122
followed
Para 29
c
(1992] 1 SCR 917
relied on
Para 30
[1957] SCR 930
referred to
Para 33
(1958] SCR 1
referred to
Para 35
D
[2000] 1 Suppl. SCR 69
referred to
Para 41
(1982] 3 SCR 583
referred to
Para 41
[2013] 6 SCR 949
referred to
Para 43
AIR 1966 SC 1987
referred to
Para 45
E
(1987] 2 SCR 1
referred to
Para 49
[2001] 1 SCR 221
referred to
Para 50
[1976] 1 SCR 626
referred to
Para 50
[2009] 3 SCR 735
referred to
Para 51
F
[1953) SCR 677
referred to
Para 52
[1979] 1 SCR 26
referred to
Para 53
(1988] 2 Suppl. SCR 24
referred to
Para 54
[2004] 6 Suppl. SCR 332
referred to
Para 55
G
[2002] 2 SCR 383
followed
Para 55
[1995) 3 Suppl. SCR 702
relied on
Para 56
(1985) 4 sec 11
referred to
Para 56
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A
(2017) 5 sec 465
referred to
Para 58
[1988) 2 Suppl. SCR 528
referred to
Para 58
(1996) 3 Suppl. SCR 439
referred to
Para 59
(2003] 2 SCR 799
referred to
Para 59
B
(1986) 2 SCR 537
referred to
Para 60
(1985) 2 Suppl. SCR 711
referred to
Para 60
[1978) 3 SCR 98
referred to
Para 61
[2014] 11 SCR 463
followed
Para 85
c
(2016] 12 SCR 131
relied on
Para 86
In the judgment of R. F. Nariman2 J.
(1972) 1 SCR 726
referred to
Para 13
[1979) 1 SCR 1054
referred to
Para 17
D
[1979) 3 SCR 1133
referred to
Para 18
[1994) 1 SCR 445
referred to
Para 19
[2001) 1 SCR 221
referred to
Para 20
E
[1977) 2 SCR 392
referred to
Para 21
[1987) 2 SCR 1
referred to
Para 22
[2003) 3 SCR 589
relied on
Para 25
[2005) 2 SCR 708
relied on
Para 25
F
[1996) 3 Suppl. SCR 439
relied on
Para 26
[2015) 2 SCR 835
relied on
Para 27
(1991) 1 SCR 938
relied on
Para 28
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
G 1217-1219of 2017.
From the Judgment and Order dated 29.06.2015 of the High Court
of Delhi at New Delhi in Criminal M. C. No. 2524/2015 & Crl. M.A.
Nos. 8839115 & 8918115.
Sanjay R. Hegde (AC), Aman Sinha, Sr.Advs.,Anil Kumar Misra,
H Pranjal Kishore, Atul Shankar Vinod, Ms. Aishwarya Bhati, Ms. Dity
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE
939
(GOVT. OF NCT OF DELHI)
Apurva, Jaideep Singh, T. Gopal, K.L. Janjani, R.K. Rahore, P.K. Dey,
A
Anil Hooda, B.K. Prasad, Ms. Charu Wali Khanna, Siddharth Dave,
Chirag M. Shroff, Ms. Jemtiben, AO, Siddharth Dave, Advs. for the
appearing parties.
The Judgments of the Com1 were delivered by
Ii
1.
DIPAK MISRA, J. 1. Leave granted.
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2. The pivotal issue that emanates for consideration in these
appeals, by special leave, pertains to interpretation of Section 2( d) of the
Protection of Children from Sexual Offences Act, 2012 (for short, "the
POCSO Act"), and the primary argument of the learned counsel for the
appellant is that the definition in Section 2( d) that defines "child" to mean c
any person below the age of 18 years, should engulf and embrace, in its
connotative expanse, the "mental age" of a person or the age determined
by the prevalent science pertaining to psychiatry so that a mentally
retarded person or an extremely intellectually challenged person who
even has crossed the biological age of 18 years can be included within
the holistic conception of the term "child".
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3. Before I note the submissions of Ms. Aishwarya Bhati, learned
counsel for the appellant, the supporting submissions by the respondent
State and the proponements in oppugnation by the learned senior counsel
who was engaged on behalf of the accused-respondent No. 2 by the
Court as the said respondent chose not to enter appearance, few facts
are essential to be noted. The appellant is represented by her mother on
the foundation that she is suffering from Cerebral Palasy (R. Hemiparesis)
and, therefore, though she is biologically 38 years of age, yet her mental
age is approximately 6 to 8 years. In this backdrop, it is contended that
the trial has to be held by the Special Court established under the POCSO
Act. As the facts would unroll, the mother of the appellant had lodged
FIR No. 197 of 2014 at Police Station Defence Colony, New Delhi
against the respondent No. 2 alleging that he had committed rape on her
mentally retarded daughter and on the basis of the FIR, investigation
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was carried on and eventually charge sheet was laid for the offence
punishable under Section 376(2)(1) of the Indian Penal Code (!PC) before
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the concerned Judicial Magistrate, who, in turn, committed the case to
the Court of the learned Assistant Special Judge/Special Fast Track Court,
. Saket, New Delhi for trial. Many a fact has been enumerated which
need not be stated in detail. Suffice it to mention that the trial commenced
and when the question of examination of the appellant came up, various
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aspects such as camera trial, videography of the trial, absence of
congenial atmosphere and many other issues emerged. As the mother
of the appellant felt that the trial court was not able to address the same,
the victim through her mother, filed a petition under Section 482 of the
Code of Criminal Procedure (CrPC) before the High Court of Delhi
praying, inter alia, that the matter should be transferred to the Special
Court under the POCSO Act as the functional age of the prosecutrix is
hardly around 6 to 8 years and there is necessity for trial to be conducted
in a most congenial, friendly and comfortable atmosphere and the
proceeding should be videographed. The High Court vide order dated
15.06.2015 issued directions for making necessary arrangements for
videography of the proceeding as the prosecutrix mainly communicates
through gestures. The order passed in that regard read as follows:
"Vi de order dated l 5'h September, 2014, the learned ASJ, Special
Fast Track Court, Saket had directed that the prosecutrix who is
a physically and mentally challenged girl suffering from cerebral
palsy will be provided a special educator/interpreter and necessary
arrangements be made for videographing the in-camera trial at
the time of recording of the statement of the prosecutrix. When
the evidence of the prosecutrix was sought to be recorded on l 5'h
May, 2015 the learned Judge noted that the concerned officer of
the vulnerable witness Court complex submitted that the
videographing of the proceedings is not permissible. The learned
Additional Sessions Judge has sought necessary directions
regarding videography from the learned Sessions Judge (South)
in this regard and has listed the matter for 27'h May, 2015. It is
also informed by the learned APP on instructions from the
investigating officer that two doctors of AIIMS have been
contacted who will be present on the date when the evidence of
the prosecutrix has to be recorded.
Learned counsel for the petitioner states that the prosecutrix is
terrified by the presence of males and it would be thus appropriate
if female doctors/interpreters are available at the time of the
evidence of the prosecutrix. Learned APP will file a status report
in this regard before the next date.
In the meanwhile the learned Sessions Judge (South District) will
make necessary arrangements for videography of the proceedings
as the prosecutrix mostly communicates through gestures."
4. The matter was finally disposed ofvide order dated 29.06.2015
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE
941
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]
and the appellant felt aggrieved as the two main prayers, namely, (i)
A
transfer of the case to the Special Court established under the POCSO
Act as the functional age of the prosecutrix is 6 to 8 years and (ii) the
transfer of the case from P.S. Defence Colony to the Crime Branch for
proper supervisional investigation were not allowed. As the impugned
order would show, the High Court directed that the case should be
B
assigned to a trial court presided over by a lady Judge in Saket Court.
5. When the matter was listed on 01.04.2016, it was contended
by Ms. Bhati, learned counsel for the appellant that the prosecutrix has
been suffering from a devastating mental and physical disorder since
her birth and though she is biologically aged about 38 years, she has not
mentally grown beyond six years. In support of her stand, a certificate
C
of the neuro-physician and the psychologist of AIIMS, New Delhi was
filed. She had referred to Section 28 of the POCSO Act which deals
with Special Courts. She had also drawn attention of the Court to Sections
24 to 27 of the POCSO Act to highlight that there is a special procedure
for recording statement of the child and, therefore, when medical evidence
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had established the mental age, the victim's biological age should not be
the governing yardstick but she should be considered as a child because
she is intellectually challenged and mentally retarded under the POCSO
Act.
6. As the respondent No. 2 did not appear, the Court appointed
Mr. San jay R. Hegde, learned senior counsel, as Amicus Curiae to argue
E
and put forth the points on behalf of respondent No. 2. On behalf of
respondent No. I, that is, State (Government ofNCT of Delhi), Mr. P.K.
Dey and Mr. Siddharth Dave, learned counsel assisted the Court.
7. After the matter was heard, the judgment was reserved and
after some time, an office note was circulated that the sole accused, the
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respondent No. 2, had died during the pendency of the proceeding. When
the matter was listed again because of the subsequent event, it was
contended by Ms. Bhati appearing for the appellant that under the
POCSO Act and the Rules framed thereunder, the victim would be entitled
to get compensation and the procedure would be different. That apart,
she also submitted that after the death of the accused, the grievance still
G
remains and as the procedure for grant of compensation is different, this
Court may deal with the principal issue. And, I have thought it appropriate
to address the same.
8. Learned counsel for the appellant submits that Section 2( d)
that defines "child" to mean any person below the age of eighteen years
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should not be conferred a restricted meaning to convey that the words
"eighteen years" are singularly and exclusively associated with the
biological or chronological age and has nothing to do with the real concept
or conception of"age". Elaborating the argument, she would contend
that "child", as defined under Article 1 of the United Nations Convention
on the Rights of Children, is to mean "every human being below the age
of 18 years unless under the law applicable, majority is attained earlier".
9. It is urged by her that the principle of purposive construction is
required to be adopted keeping in view the intrinsic perspective of POCSO
Act and construction should be placed on the word "age" to compositely
include biological and mental age so that the protective umbrella meant
and recognized for the child under the law to avoid abuse and exploitation
is achieved. It is contended by her that likes of the appellant who suffer
from mental disabilities or are mentally challenged are unable to keep
pace with biological age and their mental growth and understanding is
arrested and unless they get the protection oflaw that the legislature has
conceived, it would be an anathema that the law that has been brought
in to protect the class, that is, child, leaves out a part ofit though they are
worse than the children of the age that is defined under the POCSO
Act.