IMPORTANT POINT
Delinquents below age of 12 years have right to Partial Absolution in case they commit any criminal act.

ORDER (ORAL)

Since the petitioner is minor, in order to protect his identity, he is addressed as “ABC”. Registry is also directed to remove his name from its computer records by replacing his name as “ABC”.

By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), the petitioner has prayed for quashing and setting aside FIR being C.R.No.I – 8 of 2010 registered with Rajkot Mahila Police Station for the offences punishable under Sections 376, 354, 504, 114 of the IPC as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioner herein.

2. Heard learned advocates appearing for the respective parties.

3. Learned advocate for the petitioner would submit that the petitioner is not understanding correctness of the FIR in question. He would further submit that even if the FIR in question is taken as gospel truth, the petitioner was aged 10 and 1/2 years at the time of alleged incident. He would further submit that the birth date of the petitioner is 26.12.1999 as per birth certificate. He would further submit that the incident alleged to have taken place between 10.5.2010 and 23.5.2010 and therefore, the petitioner cannot be more than 11 years at the time of alleged incident. He would refer to section 83 of the IPC as well as judgment in case of Hiralal Mallick Vs. State of Bihar, (1977) 4 SCC 44 to submit that if the accused is less than 12 years, he cannot be treated as accused inter alia on the ground of his lack of majority. He would further submit that there is no forensic intervention carried out to establish that he was major to understand the offence and in that circumstances, he would submit that prosecution against the petitioner may not be continued.

3.1 Learned advocate Mr. Popat also referred to the judgment of the Bombay High Court in case of AK Vs. State of Maharashtra, 2022 LiveLaw (Bom) 430 to buttress the contention.

3.2 Upon above submission, learned advocate Mr. Popat prays to allow the petition.

4. Per contra, learned advocate Ms. Anjaria appearing for the original complainant would submit that allegation levelled in the FIR is of serious nature and whether the petitioner is mature or understanding the seriousness of the offence can be tested during trial and the FIR cannot be quashed on the touchstone of reading section 83 of the IPC. Upon such submission, she prays to dismiss the petition.

5. Learned APP could not point out that how section 83 of the IPC attracts to the facts of the present case.

6. Having heard learned advocates for both the sides, let refer section 83 of the IPC, which reads as under:-

“83. Act of a child above seven and under twelve of immature understanding.—Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.”

7. Therefore, even if it is an offence, it is proved that the child is more than 7 years of age and under 12 years and not attaining sufficient majority to understand the act which he is alleged to have done and consequences thereof.

8. The Hon’ble Apex Court in case of Hiralal Mallick (supra), in para 10, held as under:-

“10. Adult intent, automatically attributed to infant means, is itself an adult error. It is every day experience that little boy as a class have less responsible appreciation of dangers to themselves or others by injurious acts and so it is that the new penology in many countries immunises crimes committed by children of and below ten years of age and those between the ages of 10 and 14 are ‘in a twilight zone in which they are morally responsible not as a class, but as individuals when they know their act to be wrong’. The Indian Penal Code, which needs updating in many portions, extends total immunity upto the age of seven (S. 82) and partial absolution upto the age of twelve (S. 83). The lat