MADRAS HC’S IMPORTANT OBSERVATION: VIJAYLAKSHMI & ANR. V. STATE by PURNIMA NAIDU @LexCliq

 

Vijayalakshmi & Anr. versus State Rep. by the Inspector of Police and Anr [2021 SCC OnLine Mad 317; Case no. 232 of 2021]

“Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act”, said by Madras High Court.

 

Introduction:

Introduction to Case:

The statement “Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POSCO Act”, was said by Justice N. Anand Venkatesh in the case “Vijayalakshmi & Anr. versus State Rep. by the Inspector of Police and Anr”. This case was held before Madras High Court and the judgement was given by Justice N. Anand Venkatesh, and it was dated on January 27’2021.

Advocates appeared in the case:

For Petitioners (Vijayalakshmi & Anr.) : M/s A. Gokulkrishnan

For Respondents (State Rep. by the Inspector of Police & Anr.) : Mr. M Mohammed Riyaz Additional Public Prosecutor.

Introduction to POSCO Act:

To deal with child sexual abuse cases, the Government has brought in a special law, namely, The Protection of Children from Sexual Offences (POCSO) Act, 2012. The Act has come into force with effect from 14th November, 2012 along with the Rules framed thereunder.

The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts. The said Act defines a child as any person below eighteen years of age, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor. People who traffick children for sexual purposes are also punishable under the provisions relating to abetment in the said Act. The said Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.

 

Main issue involved in the present case:

Whether the Court can quash the criminal proceedings involving non-compoundable offences pending against the second respondent?

In view of the above, the Madras High Court is inclined to quash the criminal proceedings in Special S.C. No. 24 of 2018 on the file of the learned Sessions Judge, Mahila Court (Fast Track Mahila Court) Erode in exercise of its jurisdiction under Section 482 of the Criminal Procedure Code, 1973. Accordingly, the same is quashed and this Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is also closed.

 

Observations:

For core observations and better understanding of Justice N.Anand Venkatesh’s words, the relevant portions of the judgement which are extracted from Sabari V. Inspector of Police for proper appreciation are very helpful and these are as follows:

  1. When this case was taken up for hearing, this Court became concerned about the growing incidence of offences under the POCSO Act on one side and also the Rigorous Imprisonment envisaged in the Act. Sometimes it happens that such offences are slapped against teenagers, who fall victim of the application of the POCSO Act at an young age without understanding the implication of the severity of the enactment.
  2. In addition to the above, this Court is of the view that ‘warning’ of attraction of POCSO Act must be displayed before screening of any film, which have teenage characters suggesting relationship between boy and girl.
  3. Apart from the above, this Court is of the view that as per the 3rd respondent’s report, majority of cases are due to relationship between adolescent boys and girls. Though under Section 2(d) of the Act, ‘Child’ is defined as a person below the age of 18 years and in case of any love affair between a girl and a boy, where the girl happened to be 16 or 17 years old, either in the school final or entering the college, the relationship invariably assumes the penal character by subjecting the boy to the rigors of POCSO Act. Once the age of the girl is established in such relationship as below 18 years, the boy involved in the relationship is sure to be sentenced 7 years or 10 years as minimum imprisonment, as the case may be.
  4. When the girl below 18 years is involved in a relationship with the teen age boy or little over the teen age, it is always a question mark as to how such relationship could be defined, though such relationship would be the result of mutual innocence and biological attraction. Such relationship cannot be construed as an unnatural one or alien to between relationship of opposite sexes. But in such cases where the age of the girl is below 18 years, even though she was capable of giving consent for relationship, being mentally matured, unfortunately, the provisions of the POCSO Act get attracted if such relationship transcends beyond platonic limits, attracting strong arm of law sanctioned by the provisions of POCSO Act, catching up with the so called offender of sexual assault, warranting a severe imprisonment of 7/10 years.
  5. Therefore, on a profound consideration of the ground realities, the definition of ‘Child’ under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous 46 provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision, which can be introduced in the Act itself and in order to distinguish the cases of teen age relationship after 16 years, from the cases of sexual assault on children below 16 years. The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence”.

         The importance of the case and the act are stated in the judgement of the case itself.

Relevant Case Laws:

  1. Sabari v. Inspector of Police reported in (2019) 3 Mad LJ (Cri) 110
  2. Parbathbhai v. State of Gujrath, reported in (2017) 9 SCC 641
  3. State of Madhya Pradesh v. Dhruv Gurjar reported in (2019) 2 Mad LJ (Cri) 10

 

Conclusion:

In the present case, The Hon’ble Madras High Court has given judgement by looking after the psychological aspect and behavior of children. This case simply defines the importance of the POSCO Act and Article 15 of the Indian Constitution as well as Importance of Psychology in Legal studies. The case also teaches us to look beyond the facts and law.

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