In two recent judgments, the Calcutta High Court has opined that it is not right to indict only the male in cases under the Protection of Children against Sexual Offences Act (POCSO Act) if the alleged sexual union is participatory in nature and between two sufficiently mature persons

The Court held that the psyche of the parties, the level of maturity of the victim should be factored in to discern whether the sexual act was a unilateral act by the accused or whether it was participatory or voluntary in nature.

Allowing an appeal by the accused in a POCSO case involving a 16-year old victim and a 22-year old accused, who were stated to have earlier been in a relationship, the Judge said on September 17:

"Although the consent of a minor is not a good consent in law, and cannot be taken into account as ‘consent’ as such, the expression ‘penetration’ as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression ‘penetrates’, in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders."

The Court further opined,

"Although the question of consent does not arise in case of a minor, in order to attract Section 376(1) of the IPC, it had to be established that the alleged offence was committed against the will of the victim. Read in conjunction, the provisions of Section 376 of the IPC and Section 3 of the POCSO Act ought to be construed on a similar footing and cannot incriminate the accused for a voluntary joint act of sexual union."

If the union is participatory, there is no reason to indict only the male
Pertinently, the Court went on to observe that a male participant cannot be singled out to level POCSO charges where the union is participatory in nature.

"If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim", the Judge opined.

Allied observations were made days later, on September 21, in a case where charges of rape, cheating, and charges under the POCSO Act were levelled against a man who was 20-years at the time of the alleged incident and where the victim was approximately some months over 17 years old.

"The mere contours of the anatomy of the sexual organs of a male and a female cannot be sufficient to presume that any sexual union between two sufficiently mature persons was a unilateral act of the accused and not participatory", the Court said.

The Court has opined that the expression "penetrates" in Section 375 of the IPC (which defines "rape") and in the POCSO Act would have to be construed as unilateral or forced penetration.

Any other interpretation would lead to an absurd presumption that "even if the sexual union between two persons of sufficient maturity was participatory in nature, only the male should be held guilty of such offence", the Court said, in its September 21 judgment.

The appeals in both cases were allowed by the Court and the conviction and sentence against the accused set aside.

Court cannot close its eyes to practical realities

On the broader issue, the Court, in its September 17 ruling said,

"The POCSO Act was, rightly, introduced to offer protection to innocent children from several offences. However, a Draconian interpretation of the provisions thereof would merely convert it into a tool of abuse of the process of law, instead being a protective shield against defenceless minors ... Keeping in view the definition of ‘child’ in Section 2(d) of the said Act, even a person who is aged 17 years and 364 days would qualify as a child, but her maturity would not be much different from another person, who was just one day older than her, that is, 18 years old. "

The Court’s interpretation of a statute cannot be with eyes closed to practical realities, Justice Bhattacharya said. The law has to be construed in proper perspective, bearing in mind its object and reasons, he added.

"The stated object of the Act is to protect children from offences of sexual assault, sexual harassment and pornography and to provide for establishment of Special Courts for trial of such offences for matters connected therewith or incidental thereto. As such, while construing the expression ‘child’ in appropriate perspective, the age, maturity and other circumstances also becomes relevant to clinch a case on the ground of penetrative sexual assault", the judgment stated.

POCSO Act cannot be used as a tool of abuse to compel a person to marry
In the September 17 ruling, certain submissions made to justify a delay in lodging the FIR, which were attributed to negotiations made by the victim's family to persuade the accused into marrying the victim.

The Court, however, was unconvinced. It proceeded to observe,

"The provisions of the POCSO Act should be given an appropriate construction, for the protection of children and not as a tool of abuse to compel a person to marry another."

Similar observations were also made in the September 21 ruling, which stated:

"... mere refusal to marry, that too at a stage subsequent to the alleged incident, cannot be a handle to incriminate the appellant on the charges clamped against him, particularly keeping in view the antecedents of the accused and admitted previous physical and romantic relationship between the alleged victim and the accused. This would frustrate the purpose of the POCSO Act as well as the jurisprudence behind the IPC and lead to unscrupulous abuse of the said statutes at the drop of a hat."

Two appeals allowed

In the September 17 ruling, the Court noted that the victim and the accused were earlier stated to have had a consensual physical relationship on several earlier occasions.

"Thus, sufficient doubt, as regards any offence having been committed under Section 376(1), IPC, is raised, although a minor’s consent is of no significance", the Court said.

The Court went on to observe that there was no external injury found on the victim, ruling out any force having been applied during the incident. The Court also took note that there was a healed hymen tear that a doctor estimated was about three months old.

Moreover, the Court found several discrepancies in witness testimonies and concluded that the prosecution had failed to establish the chain of events leading to the alleged offence.

Circling back to his concern that the Court should consider practical realities, the Judge also note that the parties to the 2017 case were now leading different lives which the Court should endeavour not to disrupt.

"Although not directly relevant to the offence, the Court cannot be blind to the practical realities of life. The accused as well as the victim are at present leading marital lives with strangers to the case separately. As such, the Court ought to be doubly cautious in putting a stigma on either the accused or the victim", the Judge said.

In the September 21 ruling, the Court found that the belatedly lodged complaint was "merely an afterthought" and a "backlash" of an altercation that took place between the 17-year old victim and the 20-year old accused regarding the conditions of marriage.

There were discrepancies over the age of the alleged victim as well, although, in any event, the victim was found to be above 17 years of age (the quarrel pertained to how many months in addition to 17 years).

Given that her age was not established, the Court opined that it was doubtful as to whether the POCSO Act could be attracted at all, "since there was no formal proof on record to indicate that the victim was a minor at the relevant juncture,:

"The age of 17 and above, based on assumptions and bereft of supporting documents, gives rise to sufficient doubt as to whether the victim had already attained majority at the relevant juncture, thereby obviating the applicability of the POCSO Act itself, and not only Sections 29 and 30 thereof", the Court said.

The Court went on to echo its concerns over whether the sexual act of penetration, in this case, was participatory or a unilateral act of the accused.

As stated in its September 17 order, the Court reiterated that the "psyche and mental maturity of the victim at the relevant point of time ought also to be looked into to ascertain as to whether the alleged act of sexual intercourse between the accused and the victim, if true, was participatory from both ends, or a unilateral assertive act of the accused, sufficient to be an offence of the accused alone under the aforementioned provisions of law."

In this case, the Court concluded that the alleged act was not a unilateral one.

"In the present case, the victim was aged more than 17 years (17 years 5 months as per the assumptions of the prosecution witnesses)and studied in Class XII, while the accused was only 20 years old. Such factor, in conjunction with the admitted position that there was a romantic affair between the accused and the victim for over two and a half years, which resulted in several occasions of sexual intercourse, negate the presumption of any unilateral act of penetration in the private part of the accused, for which the accused should be held guilty", the judgment said.

The charge of cheating levelled against the accused was also quashed, with the Court observing that, "Subsequent refusal to marry cannot be come within the purview of cheating on the premise that the accused resiled from his previous intention to marry subsequently."

"There is no evidence on record at all to show that the accused had unilaterally perpetrated the offences alleged, with the deliberate intention to deceive the alleged victim, at the relevant point of time when the alleged offence took place. Hence, the conviction of the accused under Section 417 of the IPC also fails", the Court said.