Manas Dasgupta
NEW DELHI, July 10: In a landmark judgement, the Madras High Court on Monday decided to quash all criminal cases registered against minor boys for having consensual relationships with, or having eloped with minor girls, if it finds that these cases are against the interest and future of the children involved, besides being an abuse of the process of court or an abuse of the process of law.
It directed the Tamil Nadu and the union territory of Puducherry police to identify the cases involving juvenile consensual relationships from among the 1,274 pending cases and prepare a separate list by August 11, the next date of hearing of the case.
Justices N. Anand Venkatesh and Sunder Mohan have also decided to put an end to the two-finger test conducted on victims of sexual offences and the archaic potency test conducted on the suspects, by collecting their sperm. The judges have directed the police to come up with a standard operating procedure to conduct a potency test by merely collecting blood samples.
The interim orders were passed on a habeas corpus petition filed in 2022 with respect to a missing minor girl in Cuddalore district. After finding it to be a case of elopement, the judges recorded the submission of the police that they had already filed a closure report before the Juvenile Justice Board after not finding the commission of any kind of offence.
Wanting to end the practice of the two-finger test, the judges directed the DGPs to find out whether such a test had been conducted in any case since January 1, 2023 and bring it to the notice of the court for passing appropriate orders. The judges also insisted upon discontinuing the archaic method of collecting sperm for a potency test.
“Science has improved metes and bounds and it is possible to conduct this test by just collecting the blood sample. Such advanced techniques are being followed across the world and we should also fall in line. Hence there will be a direction to the respondents to come up with a SOP for conducting potency test by merely collecting the blood sample,” the bench ordered.
The bench issued the order for en masse quashing of such cases when its attention was drawn to another but similar case of two minor children having eloped from Dharmapuri district to Chennai where they rented a house, the Bench found that the personnel of an All Women Police Station had registered a case against the minor boy under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Further, a Block Development Officer (BDO) had taken away the minor girl and lodged her in a private home for over a month. She was not allowed to go with her parents despite being pregnant. The minor boy too, was detained at a ‘place of safety’ as defined under the Juvenile Justice (Care and Protection of Children) Act of 2015 for nearly 20 days.
Pointing out that the minor boy and girl involved in such incidents would fall under the definition of the term ‘child’ (any person below the age of 18 years) as defined under the POCSO Act, the judges were shocked to find the police had treated the minor girl in the case as a victim, and the minor boy as a child in conflict with the law.
“This case must be taken to be a wakeup call to ensure that such incidents at least do not happen in the future. It is sad that none of the stakeholders were sensitive to the fact that both the boy and the girl were under 18 years and both of them are categorised as child under the relevant enactment,” the Bench wrote.
After finding the minor girl to have given a statement to the police that it was she who forced the boy to elope with her and also taking into account the disinclination on the part of her parents to prosecute the case against the minor boy, the judges quashed the First Information Report (FIR) registered by the police on the basis of the BDO’s complaint.
The FIR was quashed by exercising the High Court’s writ jurisdiction under Article 226 of the Constitution read with Section 482 (inherent powers of the High Court to pass such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice) of the Code of Criminal Procedure.
Authoring the order, Justice Venkatesh said, as many as 1,728 such cases appeared to have been registered in Tamil Nadu since 2010 and of them 1,274 were pending. Similarly, 21 cases were pending in Puducherry. All these cases were either at the stage of investigation or trial. The Bench directed the Tamil Nadu Director-General of Police to identify the cases involving consensual relationships from among the 1,274 pending cases and prepare a separate list by August 11. A similar direction was issued to the Puducherry DGP.
“If those cases are segregated from the pending cases, it will be easy for this court to deal with them and in appropriate cases, this court can also exercise its jurisdiction and quash the proceedings if the proceedings are ultimately going to be against the interest and future of the children involved in those cases,” he wrote.
The Bench also insisted that the Tamil Nadu State Legal Services Authority and Tamil Nadu Judicial Academy conduct senisitisation programmes for Child Welfare Committees and the presiding officers of Juvenile Justice Boards so that they don’t unnecessarily deny the parents the custody of children in conflict with the law.
The Delhi High Court too had issued a similar order last year when it remarked that the intention of the POCSO Act was to protect children below the age of 18 from sexual exploitation and that it was never meant to criminalise consensual romantic relationships between young adults.
The observation was made by Justice Jasmeet Singh while granting bail to a young man, who was arrested by the Delhi Police, based on an FIR filed by the father of a minor girl who accused him of raping and kidnapping his 17-year-old daughter with intent to compel her to marriage.
The young man had moved the court for bail, stating that he had been in custody since December 31, 2021. His counsel argued before the court that this is a case where the girl came with the young man out of her own will. The counsel had pointed out that on October 27 the girl came to the house of the man and the next day they went to Punjab and got married. The counsel further said the girl had last year approached the High Court of Punjab and Haryana stating that she had married the young man out of her own will.
Subsequently, the High Court of Punjab and Haryana had directed the police to provide adequate and appropriate protection to the girl and her husband. Taking note of the submission, Justice Singh said, “In my opinion, the intention of POCSO was to protect children below the age of 18 years from sexual exploitation. It was never meant to criminalise consensual romantic relationships between young adults.” “However, this has to be seen from facts and circumstances of each case. There might be cases where the survivor of sexual offence, may under pressure or trauma be forced to settle,” he cautioned.