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SUPREME COURT OF INDIA
Dipak Misra, R.F. Nariman, JJ.
Ms. Eera Through Dr. Manjula Krippendorf – Appellants
Versus
State (Govt. of NCT of Delhi) & Anr. – Respondents
Criminal Appeal Nos. 1217-1219 of 2017 (Arising out of S.L.P. (Crl.) Nos. 2640-2642 of 2016)
Decided On : 21-7-2017
(a) Protection of Children from Sexual Offences Act, 2012 – Statement of objects and reasons and Preamble – Purpose of the legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child. (Para 18)
(b) Protection of Children from Sexual Offences Act, 2012 – Section 5(k) – Lays stress on mental disability of the child. (Para 20)
(c) Protection of Children from Sexual Offences Act, 2012 – Section 2(1)(d) – Child – Definition of child lays stress upon the mental and physical disability of the child – The child is the principal protagonist and the POCSO Act protects the child from any sexual act and also takes into consideration his mental disability. (Para 22)
(d) Protection of Children from Sexual Offences Act, 2012 – Section 27 – Child’s medical examination – Mandatory even though POSCO Act not mentioned in FIR. (Para 23)
Protection of Children from Sexual Offences Rules, 2012
(e) Interpretation of statute – Purposive interpretation – statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning – A section has to be construed in entirety – Purpose or object of an enactment and the legislative intention governing it – Distinction – Former relates to mischief to which the enactment is directed and its remedy – Latter relates to the legal meaning of the enactment – The construction helping to carry out the beneficent purpose of the Act but such interpretation should not unduly expand the scope of a provision – Functional approach – Sometimes it may be necessary to take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment. (Para 26, 30, 40, 47, 50)
148 F 2d 737 (2d Cir 1945); [2003] UKHL 13 : [2003] 2 AC 687 : [2003] 2 WLR 692 (HL); (2017) 2 SCC 629; AIR 1960 SC 122; 1992 Supp. (2) SCC 351; AIR 1957 SC 628; AIR 1957 SC 832; (2013) 5 SCC 546; AIR 1966 SC 1987; (1987) 1 SCC 424; (2001) 4 SCC 139; (2009) 4 SCC 94; (1988) 3 SCC 609; (2005) 1 SCC 289; (1995) 6 SCC 326; (1988) 4 SCC 284 – Relied upon
1909 AC 147; (2000) 5 SCC 488; (1982) 2 SCC 202; (1968) 3 WLR 714; (1975) 2 SCC 810; AIR 1953 SC 274; (2002) 1 WLR 2956 : (2002) 4 All ER 654 (HL); (1979) 2 SCC 34; (1985) 4 SCC 71; (2017) 5 SCC 465; (1996) 4 SCC 596; (2003) 4 SCC 712; (1986) 3 SCC 38; (1985) 4 SCC 343; (1978) 1 SCC 636 – Referred
(f) Protection of Children from Sexual Offences Act, 2012 – Section 2(d) – Definition of Child – Use of words "below the age of 18 years" after “child” – Limits the scope of interpretation of ‘age’ of child – Mental illness and mental retardation – Distinction – Question of casus omissus does not arise. (Para 73, 81)
(2009) 9 SCC 1; Padma Sundara Rao – Relied upon
(g) Protection of Children from Sexual Offences Act, 2012 – Section 2(1)(d) – Age – Legislative intent to treat it biological age there being set principles and procedures for determination thereof – Mental age not determinable – even expert bodies will differ – The Act treats minors as a class – Saying that ‘age’ would cover ‘mental age’ would amount to adding words to the provision – Impermissible – To do so is within the sphere of legislature – Section 164(5A)(b), Code of Criminal Procedure, 1973 – Safeguards the interest of mentally disabled person. (Para 83, 84, 85, 86)
(2015) 2 SCC 796; (2017) 5 SCC 163 – Relied upon
(2015) 11 SCC 725; (2015) 1 SCC 67; (2003) 8 SCC 590; (1986) 2 SCC 614; (1999) 2 SCC 228; (2008) 9 SCC 527; (2012) 2 SCC 489; (2014) 9 SCC 657; AIR 1965 SC 1839; (1987) 1 SCC 204; (2005) 3 SCC 551; (1994) 3 SCC 440; BCCA 1999 416; [1901] 1 KB 726; [1984] 2 SCR 173; (1990) 2 SCC 378; (1982) 3 SCC 140 : [1983] 1 SCR 393 – Referred
(h) Words and Phrases – "Consent" and "submission" – Every consent involves a submission but the converse does not follow – An act of helpless resignation could not be treated as consent. (Para 71)
(i) Protection of Children from Sexual Offences Act, 2012 – Section 2(1)(d) – Age whether includes mental age – Provisions of Indian Penal Code, 1860 are on different base and footing – Cannot be applied to POSCO Act. (Para 72)
(j) Code of Criminal procedure, 1973 – Section 357 – Compensation – Victim mentally disabled and accused dying – Maximum compensation directed to be paid without enquiry. (Para 88)
Per R.F.Nariman, J. (Concurring)
(k) Constitution of India – Articles 141 and 245 – Judges only declare the law – It is for the legislatures to make the law – Judicial "Legisputation" – Not legislation but application of a given legislation – Courts should examine text as well as context, and object or purpose as well as literal meaning – Court must have recourse to the purpose, object, text, and context of a particular provision before arriving at a judicial result – Purposive interpretation. (Para 91, 92, 104, 105, 111, 112)
(1979) 1 SCR 1054; (1979) 3 SCR 1133; (1994) 3 SCC 440; (2001) 4 SCC 139; (1977) 2 SCC 273; (1987) 1 SCC 424 – Relied upon
76 E.R. 637 [1584]; Moore's Indian Appeals, Volume 4 (1846 to 1850) 179; 1857 (6) HLC 61; 245 U.S. 418; 132 Federal Reporter, 2d Series, 660; 1965(2) All E.R. 441; [1976] 1 All ER 466; (1972) 4 SCC 353; 1857 6 HLC 61; 244 US 205; [1999] 2 All ER 791; [2003] 2 All E.R.113; (2017) 2 SCC 629; (1997) 187 CLR 384 – Referred
(l) Legal Interpretation – Golden Rule of grammatical and common parlance construction – Covers statutes, Wills and all written instruments. (Para 95)
(m) Interpretation of statute – Penal statute – Penal statute or any penal provision in any law – Must be construed strictly – However modern trend permits departure therefrom – Beneficial statute – Purposive interpretation – a (Para 115, 116)
(2003) 6 SCC 107; (2005) 4 SCC 370; (1996) 4 SCC 596; (2015) 6 SCC 477; (1991) 2 SCC 495 – Relied upon
AIR 1963 SC 1116 : (1963) 2 Cri LJ 186 : 1963 Supp (2) SCR 724; (2005) 4 SCC 530 : 2005 SCC (Cri) 961; (2003) 1 SCC 217 : 2003 SCC (Cri) 271; (2004) 3 SCC 199 : 2004 SCC (Cri) 699; (1584) 3 Co Rep 7a : 76 ER 637; (1949) 2 KB 481 : (1949) 2 All ER 155 (CA) – Referred
(n) Protection of Children from Sexual Offences Act, 2012 – Section 2(1)(d) – Child – Age – Reading the word "mental" into Section 2(1)(d) would be doing violence both to the intent and the language of Parliament. (Para 130)
Facts of the case:
Interpretation of Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 so far as it concerns definition of child falls for consideration in these appeals.
The appellant, though is biologically 38 years of age, yet her mental age is approximately 6 to 8 years due to Cerebral Palasy (R. Hemiparesis).
It is contended that the trial has to be held by the Special Court established under the POCSO Act. Mother of the appellant had lodged FIR against the respondent No. 2 alleging that he had committed rape on her mentally retarded daughter and on the basis of the FIR, investigation was carried on and eventually charge sheet was laid for the offence punishable under Section 376(2)(l) of the Indian Penal Code.
The victim through her mother, filed a petition under Section 482 of the Code of Criminal Procedure before the High Court praying, inter alia, that the matter should be transferred to the Special Court under the POCSO Act as the functional age of the prosecutrix is hardly around 6 to 8 years and there is necessity for trial to be conducted in a most congenial, friendly and comfortable atmosphere and the proceeding should be videographed.
The High Court issued directions for making necessary arrangements for videography of the proceeding as the prosecutrix mainly communicates through gestures.
The appellant felt aggrieved as the two main prayers, namely, (i) transfer of the case to the Special Court established under the POCSO Act as the functional age of the prosecutrix is 6 to 8 years and (ii) the transfer of the case from P.S. Defence Colony to the Crime Branch for proper supervisional investigation were not allowed.
Finding of the Court:
Definition in Section 2(d) defining the term "age" cannot include mental age.
Result: Appeals disposed of. Directions given.
JUDGMENT
Dipak Misra, J.
Leave granted.
2. The pivotal issue that emanates for consideration in these appeals, by special leave, pertains to interpretation of Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 (for short, "the POCSO Act"), and the primary argument of the learned counsel for the appellant is that the definition in Section 2(d) that defines "child" to mean any person below the age of 18 years, should engulf and embrace, in its connotative expanse, the "mental age" of a person or the age determined by the prevalent science pertaining to psychiatry so that a mentally retarded person or an extremely intellectually challenged person who even has crossed the biological age of 18 years can be included within the holistic conception of the term "child".
3. Before I note the submissions of Ms. Aishwarya Bhati, learned counsel for the appellant, the supporting submissions by the respondent State and the proponements in oppugnation by the learned senior counsel who was engaged on behalf of the accused-respondent No. 2 by the Court as the said respondent chose not to enter appearance, few facts are essential to be noted. The appellant is represented by her mother on the foundation that she is suffering from Cerebral Palasy (R. Hemiparesis) and, therefore, though she is biologically 38 years of age, yet her mental age is approximately 6 to 8 years. In this backdrop, it is contended that the trial has to be held by the Special Court established under the POCSO Act. As the facts would unroll, the mother of the appellant had lodged FIR No. 197 of 2014 at Police Station Defence Colony, New Delhi against the respondent No. 2 alleging that he had committed rape on her mentally retarded daughter and on the basis of the FIR, investigation was carried on and eventually charge sheet was laid for the offence punishable under Section 376(2)(l) of the Indian Penal Code (IPC) before the concerned Judicial Magistrate, who, in turn, committed the case to the Court of the learned Assistant Special Judge/Special Fast Track Court, Saket, New Delhi for trial. Many a fact has been enumerated which need not be stated in detail. Suffice it to mention that the trial commenced and when the question of examination of the appellant came up, various aspects such as camera trial, videography of the trial, absence of congenial atmosphere and many other issues emerged. As the mother of the appellant felt that the trial court was not able to address the same, the victim through her mother, filed a petition under Section 482 of the Code of Criminal Procedure (CrPC) before the High Court of Delhi praying, inter alia, that the matter should be transferred to the Special Court under the POCSO Act as the functional age of the prosecutrix is hardly around 6 to 8 years and there is necessity for trial to be conducted in a most congenial, friendly and comfortable atmosphere and the proceeding should be videographed. The High Court vide order dated 15.06.2015 issued directions for making necessary arrangements for videography of the proceeding as the prosecutrix mainly communicates through gestures. The order passed in that regard read as follows:
"Vide order dated 15th September, 2014, the learned ASJ, Special Fast Track Court, Saket had directed that the prosecutrix who is a physically and mentally challenged girl suffering from cerebral palsy will be provided a special educator/interpreter and necessary arrangements be made for videographing the in camera trial at the time of recording of the statement of the prosecutrix. When the evidence of the prosecutrix was sought to be recorded on 15th May, 2015 the learned Judge noted that the concerned officer of the vulnerable witness Court complex submitted that the videographing of the proceedings is not permissible. The learned Additional Sessions Judge has sought necessary directions regarding videography from the learned Sessions Judge (South) in this regard and has listed the matter for 27th May
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