2024 Supreme(SC) 675

SUPREME COURT OF INDIA
Abhay S. Oka, Ujjal Bhuyan, JJ.
IN RE: Right to Privacy of Adolescents
Suo Motu Writ Petition (C) No. 3 of 2023 with Criminal Appeal No. 1451 of 2024
Decided On : 20-08-2024

IMPORTANT POINTS
(1) Courts must follow and implement law – Courts cannot commit violence against law.
(2) Kidnapping and rape of minor girl – When such offences of rape and aggravated penetrative sexual assault are committed, by exercising its jurisdiction under Article 226 of Constitution of India and/or Section 482 of Cr.P.C., High Court cannot acquit accused whose guilt has been proved.
(3) Language and contents of Judgment – Ultimate object of writing a judgment is to ensure that parties before Court know why case is decided in their favour or against them – Judgment must be in a simple language – Conclusions recorded by Court in judgment on legal or factual issues must be supported by cogent reasons.
(4) Rehabilitation and social re-integration of victims of sexual offence – If a child who is a victim of an offence under POCSO Act is residing with accused, child becomes a child in need of care and protection – CWC has to exercise power to provide basic needs and protection to such children in need of care and protection.

Headnote:

(A) Indian Penal Code, 1860 – Sections 363 and 366 – Bharatiya Nyaya Sanhita, 2023 – Sections 137(2) and 87] – Protection of Children from Sexual Offences Act, 2012 – Section 6 – Criminal Procedure Code, 1973 – Section 482 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 528] – Kidnapping and rape of minor girl – Acquittal by High Court – Accused is biological father of child born to victim – There is no evidence to prove that accused took victim out of keeping of lawful guardian – Similarly, there is no evidence of enticing victim – Mother of victim deposed that victim left her house on her own – That is also the version of victim – Prosecution did not establish kidnapping – Offences punishable under Sections 363 and 366 of IPC are not made out – But, offences punishable under Section 6 of POCSO Act and Sub-sections (2)(n) and (3) of Section 376 of IPC were made out – High Court concluded that by equating consensual and non-exploitative sexual acts with rape and aggravated penetrative sexual assault, law undermines bodily integrity and dignity of adolescents – High Court was not called upon to discuss merits and demerits of existing laws – Duty of High Court was to ascertain on evidence whether offences under Section 6 of POCSO Act and Section 376 of IPC were made out – Courts must follow and implement law – Courts cannot commit violence against law – Even if accused and victim (who has now attained majority) were to come out with settlement, High Court could not have quashed prosecution – Findings and observations in impugned judgment, except finding on applicability of Sections 363 and 366 of IPC, cannot be sustained. (Paras 12, 17, 19 and 23.1)

(B) Protection of Children from Sexual Offences Act, 2012 – Sections 19 and 6 – Indian Penal Code, 1860 – Sections 363 and 366 – Bharatiya Nyaya Sanhita, 2023 – Sections 137(2) and 87] – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 27 – Criminal Procedure Code, 1973 – Section 482 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 528] – Constitution of India – Article 226 – Kidnapping and rape of minor girl – Acquittal by High Court – Accused was not an adolescent, but his age was about twenty-five years on the date of commission of offence, and victim was only fourteen years old – When such offences of rape and aggravated penetrative sexual assault are committed, by exercising its jurisdiction under Article 226 of Constitution of India and/or Section 482 of Cr.P.C., High Court cannot acquit accused whose guilt has been proved – Perhaps consideration of sympathy and so-called welfare of victim and her child prevailed on Judges of High Court – Though existing law of land could have taken adequate care of poor victim in this case, machinery created by law failed – Accused is guilty of offences punishable under sub-sections (2)(n) and (3) of Section 376 of IPC and Section 6 of POCSO Act – Issue regarding sentencing will be considered after committee's report is received – Government of West Bengal directed to constitute a committee of three experts, including a Clinical Psychologist and a Social Scientist – State Government may take assistance of NIMHANS or TISS for constituting the committee – A Child Welfare Officer shall be appointed to assist the committee as its coordinator and secretary – Committee members must perform their duties very carefully and sensitively while ensuring that victim does not develop a feeling of insecurity – Registry directed to forward copies of this Judgment to Secretaries of Law and/or Justice Departments of all States and Union Territories – State/Union Territories shall also assist victims in getting benefits under scheme of Government of India and scheme of NALSA. (Paras 21, 22, 26, 42 and 44)

(C) Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 393 – Language and contents of Judgment – Ultimate object of writing a judgment is to ensure that parties before Court know why case is decided in their favour or against them – Judgment must be in a simple language – Conclusions recorded by Court in judgment on legal or factual issues must be supported by cogent reasons – Court must record reasons for deciding whether charges against accused have been proved – Appellate court must scan through evidence, both oral and documentary, and reappreciate it – Court can always comment upon conduct of parties – However, findings regarding conduct of parties must be confined only to such conduct which has a bearing on decision-making – A Judgment of Court cannot contain Judge's personal opinions on various subjects – Similarly, advisory jurisdiction cannot be exercised by Court by incorporating advice to parties or advice in general – Judge has to decide a case and not preach – Judgment cannot contain irrelevant and unnecessary material – Brevity is hallmark of quality Judgment – Impugned judgment contains personal opinion of Judge’s advice to younger generation and advice to Legislature. (Paras 13 and 14)

(D) Juvenile Justice (Care and Protection of Children) Act, 2015 – Sections 19(6), 39 and 46 – Constitution of India – Article 21 – Rehabilitation and social re-integration of victims of sexual offence – If a child who is a victim of an offence under POCSO Act is residing with accused, child becomes a child in need of care and protection – CWC has to exercise power to provide basic needs and protection to such children in need of care and protection – It is responsibility of State to take care of helpless victims of such heinous offences – All provisions of JJ Act regarding taking care of such children and rehabilitating them are consistent with Article 21 of Constitution of India – Immediately after knowledge of commission of a heinous offence under POCSO Act, State, its agencies and instrumentalities must step in and render all possible aid to victim children, which will enable them to lead a dignified life – Failure to do so will amount to violation of fundamental rights guaranteed to victim children under Article 21 – There are cases where parents of victims of offences under POSCO Act abandon victims – In such a case, it is duty of State to provide shelter, food, clothing, education opportunities, etc., to victim of offences as provided in law – Even child born to such a victim needs to be taken care of in a similar manner by State – After victim attains majority, State will have to ensure that victim of offence can stand on his/her legs and think of leading a dignified life. (Paras 28.2, 37 and 38)

Facts of the case:

By impugned judgment, High Court held that offences punishable under Sections 363 and 366 of IPC were not made out, and therefore, High Court acquitted the accused for the said two offences. Considering the factual scenario that High Court noticed, it purported to exercise its jurisdiction under Article 226 of the Constitution of India read with Section 482 of Code of Criminal Procedure, 1973 to set aside the conviction of the accused for offences punishable under Section 6 of the POCSO Act and sub-sections 2(n) and (3) of Section 376 of the IPC. High Court noted that the mother of victim had disowned her and therefore, victim was continuously residing with accused along with their minor child.

Findings of Court:

This extraordinary situation was created because the State machinery did not follow provisions of law starting from sub-section (6) of Section 19 of POCSO Act. Importance of rehabilitation of victims of offences under the POCSO Act, which is a mandatory requirement of law, is being overlooked by all stakeholders. Perhaps, at levels, there is a need for introspection and course correction. We include even the Judiciary in that.

Result : Criminal Appeal partly allowed.