POCSO Act cannot be attributed in case of mutual love and affection between two young people: Meghalaya High Court

The Meghalaya High Court has observed that  in a case of a boyfriend and girlfriend particularly, if both of them are still very young, the term ‘sexual assault’ as could be understood under the POCSO Act cannot be attributed to an act where, there is  mutual love and affection between them.

A Single Bench of Justice  W. Diengdoh  made the above observation while quashing POCSO charged against a Minor and disposing the plea filed seeking quashing of the FIR dated and the resultant criminal proceedings  under Section 5(l)/6 of the POCSO Act pending trial before the court of the Special Judge (POCSO), Shillong.

K.Ch. Gautam , Counsel for the petitioners  , submitted that the petitioner No.2 (Mother of the Victim)  had lodged an FIR before the Officer-In-Charge Pynursla PS, East Khasi Hills  in December 2020, complaining that her minor daughter was sexually assaulted by the petitioner No.1 (Minor Accused) on two occasions that is  as was narrated by her minor daughter who was found absent from her room by the teacher of the school where she was studying and who had accordingly reported the matter to the petitioner No.2. Hence the FIR.  

The  counsel for the petitioners has also submitted that the minor girl in her statement under Section 161 Cr.PC made before the police as well as in her statement made before the Magistrate under Section 164 Cr.PC had stated that it is a fact that she went with petitioner No.1 on 11.12.2020 and that she also had physical relationship with him inside his vehicle on the said date and also on 16.12.2020 when they met once again and were also involved in a physical relationship inside his vehicle. The minor girl has however stated that the petitioner No.1 is her boyfriend and her relationship with him was consensual and of her own free will.  

The Investigating Officer (I/O) has however filed the charge sheet and has come to a finding that there is prima facie evidence against the petitioner No.1 to booked him under the provisions of the POCSO Act particularly, under Section 5(l)/6 of the POCSO Act and he was made to  stand trial before the court of the Special Judge (POCSO), Shillong. The case is now at the stage of evidence. However, before the evidence could be recorded the petitioner No.1 as well as petitioner No.2 as complainant has made a prayer before the  trial court to be allowed to move the High Court with an appropriate application. Hence this application.

It is further submitted that in this instant application, the petitioner No.1 as accused and the petitioner No.2 who is the mother of the minor girl and who has also lodged the FIR as complainant on mutual understanding has jointly filed this petition which reflected the bonafide of the petitioners.  

The counsel for the petitioners has also submitted that this is a case where two teenagers are involved in a romantic relationship and being unaware of the legal restrictions, had indulged in a physical relationship out of their own free will and consent. This is therefore not a case of sexual assault as could be understood from the provisions of the POCSO Act since, this is not a case in which extreme depravity, perversity or cruelty was found present and as such the petitioner No.1/accused may not be subjected to face the rigors of law and to be penalised for the same for no fault of his taking into account that there is no ill-motive or mens rea on his part. 

The  counsel has also argued that the High Court as well as many High Courts while considering this issue has taken a lenient view of the situation. The case of Vijayalakshmi v. State rep. by the Inspector of Police, All Women Police Station, Erode, Crl.O.P. No. 232 of 2021, order dated 27.01.2021, para 11 and 18, and the case of Ranjit Rajbanshi v. State of Bengal & Ors; 2021 SCC Online Cal 2470, para 47 was cited by the  counsel for the petitioners in support of his case.  

While considering the matter the Bench held that in a case of rape or sexual assault, the act not only affects the physical well being of the victim but would also leave a very deep emotional scar which would require prolonged counselling for the experience and the image to be erased from the mind of the victim. Such an act would have a more profound effect on a child. Therefore, the makers of the law have thought it fit to bring out very stringent provisions in the Protection of Children from Sexual Offences (POCSO) Act to arrest and to deter any inclination in this regard by a perpetrator. What is even    prevalent now is, what is know as ‘good touch’ and ‘bad touch’ where even a semblance of sexual overtone in the way an alleged perpetrator touches a child victim will make him liable for prosecution under the relevant provisions of the law.

“The pitfall to the above proposition is that in a case where there is mutual love and affection between a child and a person which might even lead to a physical relationship, though the consent of the child under the law is immaterial as far as prosecution for an alleged offence of sexual assault is concerned, but considering the peculiar facts and circumstances of a particular case, such as in a case of a boyfriend and girlfriend particularly, if both of them are still very young, the term ‘sexual assault’ as could be understood under the POCSO Act cannot be attributed to an act where, there is, as pointed above, mutual love and affection between them”, observed the Court.

In view of the above findings and observations, the Court is of the considered opinion that it would be for ends of justice that the FIR  and the proceedings  under Section 5(l)/6 of the POCSO Act pending trial before the court of the  Special Judge (POCSO), Shillong be quashed.

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