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ABHAY S. OKA, UJJAL BHUYAN
In Re: Right to Privacy of Adolescents – Appellant
Versus
. – Respondent
Key Points: - Directions directing rehabilitation and care of the victim and her child; committee to assess benefits and options for staying with the accused or accepting State benefits (!) (!) (!) (!) (!) - Accused convicted for offences under IPC 376(2)(n), 376(3) and POCSO Act Section 6; acquittal for IPC 363 and 366 confirmed; sentencing postponed pending committee report (!) (!) - Court exercised extraordinary jurisdiction under Article 142 and held that the accused will not undergo sentence; emphasised maintaining the family unit and safeguarding the victim’s interests (!) (!) (!) - State of West Bengal to constitute a three-expert committee (including psychologist and social scientist) for rehabilitation and to coordinate with the victim; use of NIMHANS/TISS; child welfare officer as coordinator (!) (!) (!) - Committee final report highlights systemic failures in protection of the victim under POCSO and JJ Act; recommends financial, legal, educational support and measures to protect the child and ensure education; outlines specific systemic gaps (child protection committees, Kanyashree, CWOs, legal aid, counsellors) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) - Directives for State to provide shelter, education funding up to Xth standard and potential vocational training; ensure education for victim and child; possible NGO/public support for debt relief; compliance reports due (!) (!) (!) (!) (!) (!) - Final emphasis that the case should not serve as a precedent; focus on welfare and educational ambitions of victim and child; not to punish the victim further by imprisonment of the accused (!) (!) - Administrative orders to link Union of India and Ministry of Women and Child Development for implementing recommendations; formation of permanent expert committee; reports to be submitted to Court (!) (!) (!)
JUDGMENT :
(Abhay S. Oka, J.)
FACTUAL ASPECTS
1. Criminal Appeal No.1451 of 2024 has been preferred by the State of West Bengal, being aggrieved by the judgment and order dated 18th October 2023, passed by a Division Bench of the High Court of Judicature at Calcutta. In Suo Motu Writ Petition (C) No.3 of 2023, this Court’s attention was drawn to certain objectionable observations made in the aforesaid judgement. While dealing with the same, this court took note of the systemic failure of the State to protect the victim, resulting in her fate and wellbeing being ultimately tied up with that of the accused. Accordingly, in this judgement, we are dealing with the issue of sentencing of the accused arising out of the criminal appeal and the Suo Motu Writ Petition. We are also dealing with the issue of rehabilitation of the victim and her child.
2. The learned Special Judge appointed under the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act’) convicted the accused for the offences punishable under Section 6 of the POCSO Act and Sections 363 and 366 of the Indian Penal Code, 1860 (for short, ‘the IPC’). For the offence punishable under Section 6 of the POCSO
Penetrative sexual assault on minor girl – Minor victims of sexual assault need rehabilitation and constant care in future – Measures for adolescent well-being and child protection need priority.
(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 c....
Bail – Absence of evidence indicating penetrative sexual assault, can be a ground for grant of bail.
Consent immaterial for penetrative sexual assault on minor under 18; conviction upheld on unrebutted presumptions, medical/forensic evidence despite romantic claim; distinguished from marriage/progen....
The victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child, punishable under provisions of the IPC or POCSO Act. No such appeal would be defective in....
Victims must be informed of verdicts and have the right to appeal under the POCSO Act, mandating court procedures to facilitate such notifications.
In view of the special provision under section 42 of the POCSO Act, the Court can prosecute and convict the appellant both under section 376(2)(i) of the Indian Penal Code as well as under section 6 ....
(1) Kidnapping, wrongful restraint and rape of girl child – Caste of accused is, per se, not a consideration for showing leniency in cases of such offences – Caste or religion of a litigant should ne....
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