Allowing the continuation of criminal proceedings against a man for establishing a physical relationship with a girl he was stated to be in a consensual relationship with, the Delhi High Court said though it may be desirable to treat teenage infatuation differently, its “hands are tied” till the law is changed.
Justice Swarana Kanta Sharma noted that under the law, the consent of a minor to establish a physical relationship is of “no consequence” and directed the framing of charges against the accused for the alleged commission of offences punishable under Section 376 (rape) of the Indian Penal Code (IPC) and Section 4 (penetrative sexual assault) of the Protection of Children from Sexual Offences (POCSO) Act.
The court’s order came on a petition by the prosecution against a trial court order discharging the accused of the offences punishable under sections 363 (kidnapping)/376 of the IPC and Section 4 of the POCSO Act.
The FIR in the case was registered on the basis of a “missing complaint” lodged by the minor’s father.
In the present case, the “victim”, aged about 14 years, herself told the police and the magistrate that she had voluntarily gone with the accused on several occasions and that her relationship with him was consensual.
The court, however, observed that under the POCSO Act, the age of consent for a sexual relationship is 18 years and similarly, the IPC also provides that sexual intercourse with a minor girl below the age of 18 amounts to rape even if she gave her consent.
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“There is no doubt about the fact that the victim has completely exonerated the accused from every allegation. However, the material placed on record by the prosecution points out that the victim was aged about 14 years on the date of incident,” said the court in a recent order.
“Therefore, though it may be desirable that the cases of teenage infatuation and voluntary living with each other, eloping with each other or maintaining relationship, such as the present case, are dealt with on a different footing, the court’s hands are tied as far as framing of charge is concerned till any amendment is carried out by the wisdom of the Parliament of this country, if deemed appropriate,” the court observed.
As far as the offence of kidnapping is concerned, it said, there is no evidence on record or an allegation from the minor that the accused enticed, allured or induced her to leave her house or took her out of her lawful guardianship.
It thus opined that the essential ingredient of the act of enticing or taking away was absent and the offence pertaining to kidnapping was not made out.
“This court is of the opinion that offence punishable under Section 363 IPC is not made out against the accused/respondent. In view of the aforesaid, the present petition is allowed to the extent that charges be framed against the respondent/accused for offences punishable under Section 376 of IPC and Section 4 of POCSO Act,” the court said.
The court clarified that its observations were for the purpose of deciding the present petition and the trial court would not be influenced by the same.