While directing framing of charges under POCSO Act against a man despite the victim’s recorded statement under section 164 of Cr.P.C. in which the minor girl admitted that she had a consensual relationship with the accused. In the same context, the Delhi High Court has observed that its hands are tied till any amendment is carried out in the law, though it may be desirable that cases of teenage relationships be dealt with on a different footing.
Justice Swarana Kanta Sharma observed, “Therefore, though it may be desirable that the cases of teenage infatuation and voluntary living with each other, eloping with each other or maintaining a sexual relationship, such as the present, are dealt with one a different footing, the Court’s hands are tied as far as the framing of charge is concerned till any amendment is carried out by the wisdom of the Parliament of this country if deemed appropriate.”
The court gave this statement while hearing a plea filed by the Delhi Police challenging an order passed by the trial court discharging the accused for the offences punishable under sections 363 and 376 of the IPC and section 4 of the POCSO Act.
Initially, the FIR was registered under section 363 of IPC in 2017 based on a complaint of missing which was lodged by the father of the victim who was just 14 years old.
However, the victim herself approached the police station and admitted before the Investigation Officer (IO) that she had begun liking the accused and left with him on the pretext of going to her relative’s house and stayed with him in a friend’s house and eventually they had decided to get married.
In the victim’s statement recorded under section 164 of the Cr.P.C., she stated that she had voluntarily gone with the accused on several occasions and that her relationship with the accused was entirely consensual.
The prosecution submitted that the trial court couldn’t appreciate that the age of the victim at the time of the incident was only 14 years and her MLC also stated that her hymen was found ‘freshly torn’ in the medical examination.
The trial court did not appreciate that the consent of a minor was of no consequence, also contended. The fact of her recorded statement under section 164 of Cr.P.C. was given unnecessary weightage.
While the counsel representing the accused submitted that the trial court had passed a speaking order and gave several reasons for discharge.
While framing charges against the accused under section 376 of IPC and section 4 of the POCSO Act, Justice Sharma said that the mere reading of the POCSO Act clarifies that the ‘Age of Consent’ for making a sexual relationship is 18 years.
The Court further noted, “Similarly, reading of Section 375 of IPC also makes it clear that sexual intercourse with a minor girl below the age of 18 years amounts to rape even if the minor has given her consent for the same.”
While noting that the victim had completely exonerated the accused from every allegation, the court however said that the material taken on record by the prosecution highlighted that the victim was only 14 and a half years on the date when the incident took place which was recorded by the Trial Court.
“In this case, since the victim is a child within the meaning of Section 2(d) of the POCSO Act, the consent of the victim for a physical relationship is of no consequence and cannot be of any help to the respondent/accused,” the court confirmed.
Further, it said that there was no evidence on record or allegations made by the victim that the act was done by enticing the minor girl and taking her away from her house or from her lawful guardianship.
The Court said, “Thus, in view of the aforesaid, the present petition is allowed to the extent that charges be framed against the respondent/accused for offences punishable under Section 376 of IPC and Section 4 of POCSO Act.”
However, the court also clarified that the observations made by the court are to decide the matter and the trial court will not be influenced by it.
Source: https://www.livelaw.in/news-updates/delhi-high-court-pocso-act-teenage-relationships-consent-law-amendment-required-223420