Offences of Rape and Child Sexual Abuse Cannot Be Viewed Through a Romantic Lens: SC Questions Calc HC’s Acquittal Order 

Recently, the Indian Apex Court set aside an acquittal order of Calcutta High Court where the learned Division Bench had treated the adult accused’s physical relationship with a minor as non-exploitative sexual conduct”. The Hon’ble High Court’s attempt to voice its concern for rights of adolescents had taken a wrong route where the learned judges had disregarded child protection laws in their pursuit to normalize consensual teen relationships.  

Case Description 

IN RE: RIGHT TO PRIVACY OF ADOLESCENTS 

Supreme Court of India 

Case Type: Suo Moto Writ Petition  

Case No.: Civil No. 3/2023 

Date of Order: 20.08.2024 

Bench: Abhay S. Oka, J. 

Facts 

1. The accused (male, 25) had been in an intimate relationship with the victim (girl, 14) and their relationship had resulted in her giving birth to a child.  

2. The aggrieved girl’s mother had filed an FIR, stating that her daughter had escaped her house without giving any information, and alleged that the accused had enticed her into escaping with him. It was mentioned that the aggrieved girl had been residing with the accused.  

3. There was delay in the investigation, but the accused was convicted by the Special Judge under POCSO Act under Sections 363 and 366 of IPC and Section 6 of the POCSO Act. However, the learned judge concluded that although the accused was guilty under Section 376(3) of IPC, no punishment was imposed under it as he had already been sentenced under Section 6 of POCSO Act. 

4. Based on the facts available before it, the Hon’ble High Court opined that charges under Sections 363 and 366 were not made out. In acquitting the accused of the said charges, the Court also noted that the aggrieved girl was living with the accused because her mother had disowned her.  

5. The State of West Bengal preferred a criminal appeal against the judgement of the Division Bench of Calcutta High Court, in reference to its acquittal of a man facing charges under Section 376 IPC and Section 6 of POCSO Act, after initiation of a Suo Moto petition by the Chief Justice of India. 

Issues 

1. Whether the Hon’ble Division Bench’s conclusion to acquit the accused is supported by cogent reasons? 

2. Whether the concept of “non-exploitative sexual act” be considered while dealing with an offence under Section 376(2)(n) IPC and Section 6 of POCSO Act? 

3. Whether the State has violated its obligations under the POCSO Act and Juvenile Justice Act? 

Laws Involved 

1. Section 376 of Indian Penal Code 1860 (“IPC”) 

2. Section 6 and Section 19 (6) of Protection of Children from Sexual Offences Act 2012 (“POCSO Act”) 

3. Section 27 of Juvenile Justice Act (“JJ Act”) 

4. Article 21 of Constitution of India  

Court’s Observations 

1. The Division Bench came up with the concept of “non-exploitative sexual act” while dealing with offences punishable under Section 376 (2)(n) IPC and Section 6 of POCSO Act. The Apex Court found it confusing as to how sexual act, termed as a heinous offence under penal laws, undertaken against a 14-year-old girl can be considered as “non-exploitative”.  

2. Moreover, it was highlighted that the High Court had acquitted the accused by deeming it a case of “marital rape” despite there being no evidence of a marriage between the victim and the accused.  

3. The Hon’ble Division Bench had also invented a category of “older adolescent” and attempted to recognize consensual behaviour between them. The Bench, in its order, discussed the sexual behaviour in adolescent after the onset of puberty and called it as “natural, normative and integral part of development”. 

4. The High Court had equated consensual, non-exploitative sexual acts with rape and aggravated sexual assault and opined that the law undermines the bodily integrity and dignity of adolescents. However, it was not the task assigned to the High Court to have a discourse as to the pros and cons of the existing laws. The Apex Court noted that High Court’s conclusion that the current laws make the adolescent girls voiceless by making them victims and discriminately deals with adult boys may hold some substance, but in an appeal against order of conviction was not the correct forum for the judges to express their personal views.  

5. In this discussion, the High Court did not take the facts into account and see that it wasn’t a case involving adolescents above the age of sixteen; the victim in this case was only fourteen and the accused was twenty-five years old. 

6. The Apex Court emphasized that the High Court’s duty was to ascertain whether the provided evidence make out offences under Sections 6 POCSO Act and 376 IPC. In context of the “sixthly” in Section 375, penetrative intercourse with a woman under the age of 18 is rape, irrespective of consent of the victim. So, how can such an offense be seen under the perspective of “a romantic relationship”? 

7. While perusing the provisions involved, the Supreme Court Bench remarked that the accused is not an adolescent; he is 25 years old on the date of commission of offense and the victim was 14. When such offence of rape and aggravated penetrative sexual assault is committed, the High Court exercising its powers under Art. 226 of Constitution and/or Sec. 482 of CrPC cannot acquit the accused.  

8. The Supreme Court also took into consideration that opinions of the amicus curiae about the helpless situation of the victim. She was not availed any opportunity to make an informed choice whether to stay with the accused or not; her parents had abandoned her in 2019, and she was merely 14-15 years old who decided to go where she had shelter, i.e., at accused’s place. 

9. Under the head of, “The Failure of the State”, the Apex Court noted: 

1. Under Section 19(6) of POCSO Act, the police were obligated to report the matter to Child Welfare Committee (“CWC”) and the special court within 24 hours after receiving information about the commission of the offence. There was no evidence as to the compliance of the same on the record. 

2. The CWC has been empowered under Section 27 of the Juvenile Justice Act (JJ Act) to dispose of the cases for care, protection, treatment, development and rehabilitation of children in need of care and protection. 

3. If a child is residing with a person who has injured, exploited or abused the child or violated any child protection laws, the concerned child gets covered under the category of “child in need of care and protection”.  Therefore, the child who is victim as per the POCSO Act and is living with the accused, will also be dealt with in the same category. Even children who have a parent or guardian will be covered under this provision, if the adult-in charge is found to be unfit to take care of a child.  

4. There are sufficient provisions under the JJ Act, utilizing which the CWC can ensure that the child who is sexually exploited and is a child in need of care and protection is taken care of till the age of 18. There are facilities such as rehabilitation centre and foster care, from where the child, upon entering the age of 18, can move out and also receive financial help for re-integration into society. 

5. The CWC cannot wait till the child in need of care and protection is produced before it— it must take suo moto cognizance and reach out to such children. It is under the obligation to take actions for rehabilitation of sexually abused children in need of care and protection. 

10.  The Hon’ble Supreme Court opined that Section 19 (6) is not implemented at the grassroot level. 

Conclusion 

• The Apex court directed that a copy of the judgement must be sent to Secretaries of Law Department of each State and Union Territories, and in furtherance, the Law Secretaries must coordinate with relevant departments to ensure that the benefits under the JJ Act accessible to victims covered under the legislation.  

• All provisions of JJ Act are consistent with article 21 of the Indian Constitution. Therefore, immediately after the knowledge of commission of an offence under POCSO Act, the State and its agencies should step in. The police should strictly comply with Section 19(6) of POCSO Act. Any noncompliance would result in violation of Article 21. 

• The accused is held guilty of offences under Sections 376 (2)(n) and 376 (3) of IPC and Section 6 of POCSO Act. Upon committee’s report, the sentencing would be dealt with. 

• The Apex Court directed West Bengal Government to constitute a committee of three experts— including a clinical psychologist and social scientist and appoint a child welfare officer to assist the committee as its coordinator and secretary. This committee is to be formed within three weeks for the date of order. 

• The Court’s order enlisted the tasks of the committee, including submission of a report with its recommendation of steps that are to be taken for the welfare of the victim and her child.  

• For the purpose of assessing the report of the expert committee, the matter is now listed on 21^st October 2024. 

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