IN RE: RIGHT TO PRIVACY OF ADOLESCENTS versus (20/08/2024) — Supreme Court headnote

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Summary

The Supreme Court set aside a Calcutta High Court judgment that had used Article 226 and Section 482 CrPC to acquit a 25-year-old man of aggravated penetrative sexual assault and rape of a 14-year-old girl, who later lived with him and had his child, and that was laced with judges' personal views. It restored his conviction under Section 6 POCSO and Section 376(2)(n) and (3) IPC, confirmed his acquittal of kidnapping, deferred sentence pending an expert committee's report on the victim's informed choice, and directed all States to enforce Section 19(6) POCSO and the Juvenile Justice Act's rehabilitation provisions.

Issues

Whether the offences under Section 6 of the POCSO Act and Section 376(2)(n) and (3) IPC were proved, and whether kidnapping under Sections 363 and 366 IPC was made out.
Whether the High Court, having found the offences established, could set aside the conviction by invoking Article 226 and Section 482 CrPC because the relationship was described as consensual and 'non-exploitative' and the accused was supporting the victim and child.
What a judgment in an appeal against conviction should contain, and whether the High Court's personal opinions and advice to adolescents and the legislature were permissible.
Whether the State failed in its statutory and constitutional duties towards the child victim, and what directions should follow.

Provisions considered

Section 6 read with Section 5(j)(ii), Protection of Children from Sexual Offences Act, 2012Penetrative sexual assault was undisputed; because the victim became pregnant as a result, it was aggravated penetrative sexual assault under Section 5(j)(ii), punishable under Section 6, and the offence was proved. (¶¶ 10, 12, 42)
Section 375 (clause sixthly) and Section 376(2)(n) and (3), Indian Penal Code, 1860Intercourse with a girl under eighteen is rape with or without consent, so whether it arose from a 'romantic relationship' is irrelevant; the repeated offence attracted Section 376(2)(n), and Section 376(3) applies with a minimum of twenty years where the victim is under sixteen. (¶¶ 11, 19, 21, 42)
Sections 361, 363 and 366, Indian Penal Code, 1860There was no evidence that the accused took or enticed the victim out of lawful guardianship; both mother and victim said she left on her own. The High Court's acquittal of kidnapping was the only finding upheld. (¶¶ 12, 19, 44)
Section 482 (with Article 226 of the Constitution), Code of Criminal Procedure, 1973Neither power permits the High Court to acquit an accused whose guilt for rape and aggravated penetrative sexual assault is proved; following Gian Singh, even a settlement between the accused and the now-adult victim could not justify quashing such a prosecution. (¶¶ 20, 21, 23, 23.1)
Section 19(6), Protection of Children from Sexual Offences Act, 2012The police must report the matter, including the child's need for care and protection, to the Child Welfare Committee and the Special Court within 24 hours. This is not an empty formality; it was not complied with here, and non-compliance deprives victims of Juvenile Justice Act benefits and violates Article 21. (¶¶ 27, 27.1, 29, 35, 36, 37)
Section 2(14), Juvenile Justice (Care and Protection of Children) Act, 2015A POCSO victim residing with the accused, or whose parent is unfit to care for her, is a 'child in need of care and protection'. (¶¶ 28.1, 28.2)
Sections 29, 30, 31 and 36, Juvenile Justice (Care and Protection of Children) Act, 2015The Child Welfare Committee's authority carries a corresponding duty: it must take suo motu cognizance of children in need of care and protection, act for the rehabilitation of sexually abused children reported to it under POCSO, and inquire into and order their placement. (¶¶ 28, 28.1, 29, 29.1, 30, 31, 35)
Sections 39 and 46 (with Rule 25 of the West Bengal Juvenile Justice Rules, 2017), Juvenile Justice (Care and Protection of Children) Act, 2015Rehabilitation and social reintegration must follow an individual care plan, and children leaving care at eighteen may receive financial and other after-care support; the Court called these critical provisions requiring effective implementation and State rules. (¶¶ 32, 33, 33.1, 33.2, 34, 38)
Article 21, Constitution of IndiaThe right to a dignified and healthy life extends to the child victim and the child born of the offence; the State must step in on learning of the offence, and failure to do so violates Article 21. (¶¶ 37, 38)

Held

On admitted facts, the victim being fourteen and the accused about twenty-five, the offences under Section 6 of the POCSO Act and Section 376(2)(n) and (3) IPC were proved; kidnapping under Sections 363 and 366 IPC was not, as she left home of her own accord and there was no evidence of enticement. (¶¶ 6, 9, 10, 11, 12)
Where guilt for rape and aggravated penetrative sexual assault is proved, the High Court cannot acquit by invoking Article 226 or Section 482 CrPC out of sympathy or regard for the welfare of the victim and her child; such offences cannot be quashed even on a settlement, applying Gian Singh. (¶¶ 20, 21, 22, 23, 23.1)
Consent is irrelevant where the girl is under eighteen. The High Court's concepts of 'non-exploitative' sexual acts, 'older adolescents' and 'romantic' rape cases have no basis in law, and its criticism of the POCSO Act and call to decriminalise acts above sixteen were beyond its task and inapplicable where the victim was fourteen. Courts must follow and implement the law, not leave criminality to judicial discretion. (¶¶ 16, 17, 19)
An appellate judgment on conviction must set out the facts, the evidence, the submissions, a reappreciation of the evidence and reasons for the conclusion, and on sentence where conviction is upheld, in simple and brief language. Comments on the parties' conduct must be limited to what bears on the decision. A judge must decide, not preach: personal opinions, advice to parties, the younger generation or the legislature, and irrelevant material have no place. The impugned judgment's observations were irrelevant and showed perversity. (¶¶ 13, 14, 15.1, 18)
The State machinery failed the victim: no report under Section 19(6) POCSO reached the Child Welfare Committee, her parents abandoned her, and she was left with no informed choice but to shelter with the accused. The Juvenile Justice Act is a complete code for the care, protection, rehabilitation and after-care of such victims, and the State must provide shelter, food, education and support to abandoned victims and their children. (¶¶ 24, 25, 34, 35, 36, 38)
Compliance with Section 19(6) POCSO is vital, and failure by the State to aid child victims of POCSO offences violates their right to a dignified life under Article 21; it would be ideal for Special Courts or Sessions Courts receiving such reports to forward them to the jurisdictional Child Welfare Committee. (¶¶ 35, 37)
Since the victim never had an opportunity to make an informed choice, an expert committee was directed to tell her of the State's offer of support and the available schemes and help her decide whether to remain with the accused, before sentence is considered. (¶¶ 40, 40.1, 41, 42)

Result

Appeal partly allowed: conviction under Section 376(2)(n) and (3) IPC and Section 6 POCSO restored and acquittal under Sections 363 and 366 IPC confirmed; sentence deferred. West Bengal to form a three-member expert committee within three weeks to help the victim make an informed choice and report in sealed cover by 18 October 2024. States and UTs to implement Section 19(6) POCSO and the JJ Act provisions, reporting to the Ministry of Women and Child Development; matter listed on 21 October 2024.