In Re: Right to Privacy of Adolescents vs -

(2) of Section 376 of the IPC is attracted – Therefore, the accused was liable to be punished in accordance with Section 376(2)(n) of the IPC – As far as offences u/ss.363, 366 are concerned, in the instant case, there is no evidence to prove that the accused took the victim out of the keeping of the lawful guardian – Similarly, there is no evidence of enticing the victim – The mother of the victim deposed that the victim left her house on her own – That is also the version of the victim – Hence, the prosecution did not establish kidnapping – The offences punishable under Sections 363 and 366 of the IPC are not made out – The findings and observations in the impugned judgment of the High Court, except the finding on the applicability of Sections 363 and 366 of the IPC, cannot be sustained – Thus, the impugned judgment of the High Court is set aside and the judgment of the Special Court is restored to the extent of the conviction of the accused for the offences punishable under sub-sections (2)(n) and (3) of Section 376 of the IPC and Section 6 of the POCSO Act – Accordingly, the accused stands convicted – The acquittal of the accused for the offences punishable under Sections 363 and

366 of the IPC is confirmed. [Paras 10, 11, 12, 44(a)] Judgment – When a Court deals with an appeal against an order of conviction, what are the essentials, which a judgment must contain:

Held: When a Court deals with an appeal against an order of conviction, the judgment must contain (i) a concise statement of the facts of the case, (ii) the nature of the evidence adduced by the prosecution and the defence, if any, (iii) the submissions made by the parties, (iv) the analysis based on the re-appreciation of evidence, and (v) the reasons for either confirming the guilt of the accused or for acquitting the accused – The appellate court must scan through the evidence, both oral and documentary, and re-appreciate it – After re-appreciating the evidence, the appellate court must record reasons for either accepting the evidence of the prosecution or for disbelieving the evidence of the prosecution – The Court must record reasons for deciding whether the charges against the accused have been proved – In a given case, if the conviction is confirmed, the Court will have to deal with the legality and adequacy of the sentence – In such a case, there must be a finding recorded on the legality and adequacy of the sentence with reasons – The ultimate object of writing a judgment is to ensure that the parties before the Court know why the case is decided in their favour or against them – Therefore, judgment must be in a simple language – The conclusions recorded by the Court in the judgment on legal or factual issues must be supported by cogent reasons. [Para 13]

Judgment – Judgment cannot contain the Judge’s personal opinion – The judgment cannot contain irrelevant and unnecessary material:

Held: The Court can always comment upon the conduct of the parties – However, the findings regarding the conduct of the parties must be confined only to such conduct which has a bearing on the decision-making – A judgment of the Court cannot contain the Judge’s personal opinions on various subjects – Similarly, advisory jurisdiction cannot be exercised by the Court by incorporating advice to the parties or advice in general – The Judge has to decide a case and not preach – The judgment cannot contain irrelevant and unnecessary material – A judgment must be in simple language and should not be verbose. [Para 14]

Protection of Children from Sexual Offences Act, 2012 – s.6 – Penal Code, 1860 – s.376 – What was the duty of the High Court while ascertaining the offences u/s.6 of the POCSO Act and s.376 of the IPC and Can an act that is an offence punishable under the POSCO Act be described as “a romantic relationship”:

Held: The duty of the High Court was to ascertain on the evidence whether the offences u/s.6 of the POCSO Act and s.376 of the IPC were made out – In view of “sixthly” in Section 375 of the IPC, penetrative intercourse with a woman under eighteen years of age, with or without her consent, constitutes an offence of rape – Therefore, whether such offence arises from a romantic relationship is irrelevant – An act that is an offence punishable under the POSCO Act cannot be described as “a romantic relationship” – The Courts must follow and implement the law – The Courts cannot commit violence against the law. [Para 19] Protection of Children from Sexual Offences Act, 2012 – Penal Code, 1860 – Exercise of Plenary Powers to quash the order of conviction:

Held: On a plain reading of “sixthly” in Section 375 r/w. Section 376(2)(n) of the IPC, notwithstanding the consensual sexual relationship, the offence punishable under clause (n) of subsection (2) of Section 376 of the IPC, was made out in the instant case – One of the objectives of the POSCO Act is to effectively address sexual exploitation and sexual abuse of children, as both offences are very heinous – In the facts of the case, the accused was not an adolescent, but his age was about twenty-five years on the date of the commission of the offence, and the victim was only fourteen years old – When such offences of rape and aggravated penetrative sexual assault are committed, by exercising its jurisdiction u/Art. 226 of the Constitution of India and/or s.482 of the Cr.PC, the High Court cannot acquit an accused whose guilt has been proved – In the instant case, the High Court was influenced by the fact that the victim’s parents did not support her, and therefore, by sending the accused to jail, she and her child would be miserable as the accused and his family were taking care of them – There are various decisions of this Court holding that the High Court can exercise jurisdiction u/s. 482 of the Cr.PC to quash a prosecution on the grounds of settlement or by consent – However, in respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all – Therefore, in view of the settled position of law, in the facts of the case, even if the accused and the victim (who has now attained majority) were to come out with a settlement, the High Court could not have quashed the prosecution. [Paras 21, 22, 23, 23.1]

Protection of Children from Sexual Offences Act, 2012 – s.19(6) – Juvenile Justice (Care and Protection of Children) Act, 2015 – s.27, s.2(14) – Whether the State was under an obligation to take care of the victim of an offence under the POCSO Act, who was fourteen years old:

Held: Under sub-section (6) of Section 19, it was the duty of the police to report the matter to the Child Welfare Committee (CWC) and the Special Court within a period of twenty-four hours from the time the police had the knowledge about the commission of the offence – In the instant case, there is nothing placed on record which shows that compliance was made by reporting the case to CWC – Section 27 of the JJ Act provides for setting up the CWC – The authority of the CWC is to dispose of the cases for care, protection, treatment, development and rehabilitation of children in need of care and protection, as well as to provide for their basic needs and protection – The authority conferred on the CWC creates a corresponding obligation – Even a child who has a parent or guardian and if such parent or guardian is found to be unfit to take care of the child, in such a case, the child is covered by the definition under sub-section (14) of s.2 of the JJ Act – Therefore, the CWC has to exercise the power to provide basic needs and protection to such children in need of care and protection – The JJ Act is a complete code that makes provisions for the care, protection, treatment, and development of children in need of care and protection – The JJ Act provides for making available their basic needs and protection – The Act takes care of all the needs of the victims under the POCSO Act who fall under the category of children in need of care and protection – The object is to undertake the rehabilitation and social re-integration process of such victims based on individual care plans as provided u/s. 39 of the JJ Act – Section 46 is a provision that requires the State Governments to frame rules to provide financial support to any child living in a child care institution upon completion of 18 years of age – The financial support has to be very exhaustive as the object of financial support is to facilitate a child’s re-integration into mainstream society – In the instant case, these statutory provisions were overlooked entirely, a situation was created which did not allow the victim to make an informed choice about her future – She did not get that opportunity even after attaining majority. [Paras 27.1, 28, 28.1, 28.2, 34]

Constitution of India – Art. 21 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Protection of Children from Sexual Offences Act, 2012 – Importance of rehabilitation of the victims of offences under the POCSO Act – Compliance and implementation of 19(6) of POCSO:

Held: It is the responsibility of the State to take care of helpless victims – The right to live a dignified life is an integral part of the fundamental right guaranteed under Article 21 of the Constitution of India – Article 21 encompasses the right to lead a healthy life – The minor child, who is the victim of the offences under the POCSO Act, is also deprived of the fundamental right to live a dignified and healthy life – The same is the case of the child born to the victim as a result of the offence – All the provisions of the JJ Act regarding taking care of such children and rehabilitating them are consistent with Article 21 of the Constitution of India – Therefore, immediately after the knowledge of the commission of a heinous offence under the POCSO Act, the State, its agencies and instrumentalities must step in and render all possible aid to the victim children, which will enable them to lead a dignified life – The failure to do so will amount to a violation of the fundamental rights guaranteed to the victim children under Article 21 – The police must strictly implement sub-section (6) of Section 19 of the POCSO Act – If that is not done, the victim children are deprived of the benefits of the welfare measures under the JJ Act – Compliance with Section 19(6) is of vital importance – Non-compliance thereof will lead to a violation of Article 21. [Para 37] Protection of Children from Sexual Offences Act, 2012 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Formation of expert committee – Directions issued: Held: Directions issued to the State to form a expert committee – The State Government to provide all the material particulars/details of the benefits which it is willing to extend to the victim – Thereafter, the committee shall meet the victim of the offences at such a place as it desires to communicate what the State Government is offering to her – The Committee must also inform the victim about the availability of the benefits of the scheme of the Government of India – The duty of the committee shall be to help the victim to make an informed choice whether she wants to continue to remain in the company of the accused and his family or wants to avail of the benefits offered by the State Government – The coordinator of the committee shall submit a report in a sealed cover to this Court. [Paras 44(b)(d)(e)(h)]

Protection of Children from Sexual Offences Act, 2012 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Implementation of – Directions issued:

Held: The Registry of the Supreme Court directed to forward copies of this judgment to the Secretaries of Law and/or Justice Departments of all the States and Union Territories – The Secretaries to convene meetings of the Secretaries of the concerned departments and other senior officials – The object of holding such meetings is to ensure that appropriate directions are issued to all concerned to strictly implement the provisions of Section 19(6) of the POCSO Act and the relevant provisions of the JJ Act. [Para 44(i)]