Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
The man was accused of raping a 13-year-old victim. Allegedly the victim was enticed away by the petitioner and she stayed with him and was recovered after four months by the police from the custody of the accused. The offences involved in the present case are Sections 363, 366-A, 376, 34 IPC and Sections 4 and 12 of POCSO Act.
The plea filed by accused to quash the FIR on the basis of compromise as he married the victim.
Justice Jasgurpreet Singh Puri said, “The law recognises the inherent power imbalance and disparity in competence between minors and adults, which may facilitate exploitative or abusive relationships.The law provides ex-ante protection to minors by criminalising sexual activities involving persons below eighteen years of age, who by virtue of their age are deemed to be legally incapable of giving an informed consent.”
The Court further observed that the POCSO Act has adopted the “bright- line rule” which is based upon the principle that minors do not possess the legal or developmental capacity to give informed consent in matters of sexual activity, and reflects a clear and consistent legislative intent to create an unambiguous zone of protection for minors from sexual exploitation.
Protectionist Objective
The Court observed that the rationale behind fixing the age of marriage and consent for sexual activity to a fixed statutory minimum is based upon the recognition that minors lack the requisite mental maturity and psychological competence to give informed consent to sexual acts.
“This position emanates from a protectionist objective, whereby the law operates on the presumption that minors lack the capacity to fully apprehend or appreciate the nature, implications and potential consequences of indulging in sexual activities,” the Court added.
The judge clarified that in fact the competence of minors to consent is inherently ambiguous, even in circumstances where such consent appears to be given freely.
“It must be clearly understood that the potential for manipulation or exerting undue influence by adults through various methods and multiple reasons occupying positions of trust, authority, or such a responsibility further enhances this concern by rendering the minor's ostensible consent to be suspicious in law,” the Court said.
Deterrence Theory—Utilitarian In Nature
Justice Puri observed that, Deterrent Theory of Punishment and is founded upon the doctrine that punishment is not solely imposed for the commission of a wrongful act already perpetrated, but also serves as a cautionary mechanism which is aimed at preventing the commission of similar offences in the future, either by the offender himself or by members of society at large.
The Court added that, the deterrent theory of punishment aims to 'deter' the criminals from attempting any crime or repeating the same in future by creating fear amongst individuals and also to establish an example for others or the society at large by punishing the criminal.
“A derivative of the Deterrent Theory also pertains to proportionality of punishment, which is recognized by the Indian Legal System i.e. punishments should be proportionate to the nature and gravity of the offence for which the punishment is prescribed,” it stated.
The Court referred to catena of landmark judgments on age of consent including Independent Though v. Union of India and another, 2017 (10) SCC 800 to underscore that, child remains a child whether she is a married child or an unmarried child or a divorced child or a separated child or a widowed child.
“The age of consent for sexual intercourse is definitely 18 years and there is no dispute about this and therefore under no circumstance can a child below 18 years of age give consent, express or implied for sexual intercourse,” the Supreme Court had said.
In the present case the Court analysed arguments in favour and against the quashing of FIR of rape cases under POCSO Act on basis of compromise.
One such argument raised in favour was that the Marriage and continued cohabitation with the accused reflects ongoing consent of the victim and her expressed desire to avoid adversarial proceeding.
Rejecting the above, the Court said, “having due regard to the alarming rise of such like cases, this court is of the considered view that reasoning mentioned under the head of “against” quashing of FIR on the basis of compromise shall outweigh and prevail over reasoning mentioned under the head of “favour””
Considering that, the accused was declared as proclaimed offender and apprehended after 9 long years and also that the victim supported the prosecution's case, the Court refused to quash FIR on the basis of compromise.
The Court also recorded the appreciation for Ashish Bansal, Advocate, Amicus Curiae, Shreya Singh and Surpreet Kaur, Law Researchers of the Court for their valuable assistance.
