Teenage Infatuation Cases Have To Be Dealt With Differently But Hands Are Tied Till Law Changes- Delhi HC Remarks In POCSO Case
The Delhi High Court has observed that cases of teenage infatuation and consensual relationships are to be dealt with on different footing as their “hands were tied” till the law is changed and further allowed the continuation of criminal proceedings against a man for establishing physical relationship with a minor girl, he was stated to be in consensual relationship with.
The Bench of Justice Swarana Kanta Sharma observed that “since the victim is a “child‟ within the meaning of Section 2(d) of POCSO Act, the consent of the victim for physical relationship is of no consequence and cannot be of any help to the respondent/accused. The victim had clearly stated the factum of there being sexual intercourse between her and the respondent, though with her consent, but since consent of a minor under the age of 18 years is considered no consent, the acts of sexual intercourse or penetration would prima facie fall under the purview of POCSO Act and Section 375 of IPC for the purpose of framing charge.”
APP Manoj Pant appeared for the petitioner-State and Advocate Upasana Verma appeared as Proxy Counsel.
In this case, the FIR was registered based on a ‘missing complaint’ lodged by the minor’s father. The victim was aged about 14 years had voluntarily eloped with the accused on several occasions and was in a consensual relationship.
The Trial Court had discharged the respondent-accused for the offences punishable under Sections 363/376 of Indian Penal Code, 1860 (IPC) and Section 4 of Prevention of Children from Sexual Offences, Act, 2012 (POCSO Act). Aggrieved of the Trial Court order the State had preferred the petition under section 397 read with 482 of the Criminal Procedure Code, 1973.
The Court noted that under the POCSO Act, the age of consent for a sexual relationship was 18 years and IPC also provided that sexual intercourse with a minor girl below the age of 18 amounted to rape even if she gave her consent as consent of minor was considered no consent.
Regarding the offence of kidnapping, the Court said that the essential ingredient of the act of enticing or taking away was absent as there was no evidence on record or any allegation from the minor that the accused enticed, allured or induced her to leave her house or took her out of her lawful guardianship. Therefore, the offence of kidnapping was not made out.
"Therefore, the acts of sexual intercourse or penetration would prima facie fall under the purview of POCSO Act and Section 375 of IPC for the purpose of framing charge.” observed the Court.
Accordingly, the petition was allowed by the Court.
Cause Title- State of (NCT Of Delhi) v. Vipin Sharma (NEUTRAL CITATION NO. 2023/DHC/001668)