The main legal point established in the judgment is that the increase in the age of consent by the Criminal Law (Amendment) Act, 2013 could not be applied retrospectively, and substantive law cannot have retrospective effect unless expressly provided.

Pratibha Rani, J.

Oral:

1. Petitioner is aggrieved by the order dated 23.10.2013 by learned ASJ, whereby he has been ordered to face trial for committing the offence punishable under Sections 363/366/376/346 IPC.

2. The facts that led to the filing of present revision petition are that an FIR was lodged on 16.10.2012 by the mother of the prosecutrix alleging that her daughter, aged about 17 years, had gone out of the house on 15.10.2012 at about 2 pm, and did not return. She suspected that somebody had enticed her daughter and taken her away. She requested the police to search for her daughter and take legal action against the offender.

3. On the basis of the statement of the complainant, case FIR No.466/2012 under Section 363 IPC was registered at PS Sultan Puri. Subsequently, the daughter of the complainant was recovered on 02.11.2012 from Gurgaon. She was brought to Delhi and her statement u/s 161 CrPC was recorded. On 03.11.2012, the daughter of the complainant was produced before the learned MM and her statement u/s 164 CrPC was recorded. During investigation, the I.O. also collected the date of birth certificate of the prosecutrix and after recording of the statement of other witnesses, the chargesheet was filed. The learned M.M. took cognizance of the offence and after compliance of requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

4. Vide order dated 23.10.2013, charges were framed against the accused/present revisionist for committing the offences punishable under sections 363/366/376/346 IPC. The grievance of the petitioner is that the prosecutrix was above 17 years of age and in her statement under Section 164 Cr.P.C. had stated that she consented to have physical relations with the petitioner. Since at the time of entering into physical relations with the petitioner, the age for consent as per Section 375 (sixthly) was 16 years, learned Trial Court could not have ordered for framing of charges under Section 376 IPC by giving retrospective effect to the raising of the age of consent to be 18 years by Criminal Law (Amendment) Act, 2013

5. Heard.

6. Counsel for the Petitioner submits that the offence under sections 363/366/346/376 IPC are not made out against the petitioner. With regard to the offences u/s 363/366/346 IPC are concerned, counsel for the petitioner submits that the Ld Trial Court did not consider the statement of the prosecutrix u/s 164 CrPC wherein it has been stated by her that she joined the company of the accused of her own and had no objections in living with him. Further, she admitted of having physical relations with him, with her free consent. He further submits that there was no force used on the part of the accused to compel the prosecutrix to stay with him and nor she was wrongfully confined by him.

7. It has been further submitted that the mother of the prosecutrix has also mentioned her age as 17 years which is in consonance with the date of birth recorded in the certificate of the prosecutrix, collected by the IO during investigation. He further submits that at the time when the offence was allegedly committed, the age of consent was 16 years and it was only after the Criminal law (amendment) Act 2013 came into force that age required for consent was raised to 18 years. Since the prosecutrix herself in her statement u/s 164 CrPC has stated that she had physical relations with the accused with her consent and at that time her age was above 16 years, the petitioner could not have been charged for the offence under section 376 IPC. He submits that the substantive law cannot have a retrospective effect, unless otherwise notified. Hence, the impugned order directing him to be charged for committing the offence u/s 376 IPC would be in violation of Article 20(1) of the Constitution of India.

8. On behalf of the State, Ms.Rajdipa Behura, Ld. APP submits that in her statement under section 164 Cr.P.C., the prosecutrix mentioned that the appellant enticed