Quashing a first information report (FIR) for offences under Sections 3 and 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 pertaining to penetrative sexual assault on a minor, the Meghalaya high court has ruled that a 16-year-old is capable of making a “conscious decision” with regard to an act of sexual intercourse.
A single judge bench of Justice Wanlura Diengdoh allowed the petition and quashed the FIR registered against the accused and the proceedings of the special POSCO case and released him.
The court observed that “a large array of cases filed under POCSO seems to be those arising based on complaints registered by the families of adolescents and teenagers who are involved in romantic relationships with each other”.
“The scheme of the act clearly shows that it did not intend to bring within its scope or ambit, cases of the nature where adolescents or teenagers involved in romantic relationships are concerned,” it further stated.
The court also urged the legislature to “keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO act”.
“This court looking into the physical and mental development of an adolescent of that age group (referring to minor of around 16 years of age), would consider it logical that such a person is capable of making conscious decision as regard his or her well-being as to the actual act of sexual intercourse,” the court said.
The bench was hearing a plea seeking quashing of an FIR for offences under POCSO claiming that the act was not a case of sexual assault but was purely a consensual act as the petitioner and the alleged victim were in love with each other.
The accused, who was a teenager, was arrested in a special (POCSO) case in 2021 after a FIR was filed against him by the mother of the teenage girl on January 1, 2021, before the in-charge, Khapmara, Umroi police information centre in Ri-Bhoi district, accusing him of kidnapping and deriving sexual favours from her 16-year-old daughter.
The petitioner was employed in various households and became acquainted with the alleged victim. It is alleged that the duo went to the petitioner’s uncle’s house where they engaged in sexual intercourse.
The petitioner contended that the alleged incident did not constitute sexual assault since the survivor herself explicitly disclosed in her statement under Section 164 CrPC and during her testimony in court that she was the petitioner’s girlfriend. Furthermore, she affirmed that the sexual intercourse took place with her consent and there was no employment of force involved.
Counsels for the petitioner argued that the girl has strongly denied the allegation and in her statement under Section 164 as well as in her deposition before the court clearly stated that she was the “girlfriend of the petitioner”.
Additional public prosecutor of Meghalaya, H Kharmih submitted before the court that “the evidence of the alleged victim would suggest that there was no force involved in the sexual act between the parties herein and that the alleged victim has also confirmed this fact in her evidence, therefore, this is a testimony that perhaps there may not have been any element of sexual assault as far as the incident is concerned”.
After a thorough examination of the petitioner’s submissions and previous legal precedents, the court determined that the survivor’s statement was in support of the petitioner’s case, despite her being a minor at approximately 16 years of age.
“As a consequence of such an FIR being registered, invariably the boy gets arrested and thereafter, his youthful life comes to a grinding halt. The provisions of the POCSO act, as it stands today, will surely make the acts of the boy an offence due to its stringent nature. An adolescent boy caught in a situation like this will surely have no defence if the criminal case is taken to its logical end. 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,” Justice Diengdoh said.
“Prima facie, it appears that there is no mens rea involved. Be that as it may, at this juncture, this court is of the opinion that the proceeding of the case before the trial court would serve no purpose in the peculiar facts and circumstances. … The petitioner is released and discharged from any liability as far as the said case is concerned,” the court stated as it quashed the proceedings against the petitioner.
