While ruling on a very significant legal point pertaining to the consensual relationship of the adolescents and so also regarding its implications under the POCSO Act, we see here quite clearly that the Karnataka High Court at Bengaluru in a most learned, laudable, landmark, logical and latest judgment titled G Raghu Varma vs The State of Karnataka in Criminal Petition No. 13469 of 2023 and cited in Neutral Citation No.: NC:2024:KHC:6949 that was pronounced just recently on February 19, 2024 minced just no words whatsoever to hold most unequivocally that the Protection of Children from Sexual Offences (POCSO) Act was not meant to criminalize consensual sexual relationships between adolescents, but to protect them from sexual abuse. It must be also noted here that the Karnataka High Court after taking into account all the material and considering all the evidence placed before it quashed a case that had been registered against a 21-year-old who was booked by the Bengaluru Police for marrying a minor aged 16 years and was having a sexual relationship with her. Of course, we definitely also need to certainly look here that the Single Judge Bench comprising of Hon’ble Mr Justice Hemant Chandangoudar heard the State’s plea who was opposing the petitioner’s bail plea and opined sagaciously stating precisely that, “The Object of POCSO Act is to protect minors from sexual abuse and not to criminalize the consensual relationship between two adolescents who had consensual sexual intercourse without knowing the consequences.”
It really warms the inner cockles of my heart to note that the Court conceded that, “The petitioner is in judicial custody and is unable to support the survivor and the child. If the criminal proceedings are allowed to continue, it would result in incarceration causing more misery and agony to the survivor and her child rather than securing the ends of justice.” It must be also noted that the Court further said that though having sexual intercourse with a minor even with consent is an offence, it would be appropriate to quash the proceedings, considering the facts and circumstances of the case. While quashing the criminal proceedings, the Bench noted that, “Otherwise, it would result in miscarriage of justice to the survivor and the child.”
To be sure, we thus see quite distinctly that the Karnataka High Court thus in the fitness of things very rightly took the bold decision to order the immediate release of the petitioner from the judicial custody. It must also be seen here as stated right in the beginning of this notable judgment that, “This Crl.P is filed u/s 482 Cr.PC by the advocate for the petitioner praying that this Honourable Court may be pleased to quash the criminal proceedings pending against the petitioner in SPL.C.C.No.2432/2023, against the petitioner herein, who is arraigned as accused for the offence P/U/S 366A, 376(1) of IPC and 4 and 6 of POCSO Act, 2012 and Section 9 of Prohibition of Child Marriage Act 2012 at Annexure-A pending on the file of Additional City Civil and Sessions Judge FTSC-III at Bengaluru and etc.”
At the very outset, this brief, brilliant, bold and balanced judgment which was authored by the Single Judge Bench comprising of the Hon’ble Mr Justice Hemant Chandangoudar of Karnataka High Court at Bengaluru sets the ball in motion by first and foremost putting forth in para 1 that, “The petitioner – accused is sought to be prosecuted for the offences punishable under Sections 366(A), 376(1) of the IPC and Sections 4 and 6 of the POCSO Act, 2012 and Section 9 of the Prohibition of Child Marriage Act, 2006.”
As we see, the Bench then states in para 2 of this notable judgment that, “The case of the prosecution is that, the petitioner – accused fully knowing that the survivor was the minor, solemnized his marriage with her and committed penetrative sexual assault.”
To put things in perspective, the Bench then envisages in para 3 of this refreshing judgment that, “The survivor and her parents were present before this Court on 20.12.2023, and filed joint affidavit stating that the marriage of the survivor with the petitioner was solemnized inadvertently, and in ignorance of law, and from the said wedlock, a male child was born on 28.11.2023. They further stated that the survivor and the newly born child are dependent on the petitioner for their livelihood. If the criminal proceedings are allowed to continue, it would result in incarceration of the petitioner – accused which would cause more misery and agony to the survivor and her child rather than securing the ends of justice.”
Do note, the Bench then notes in para 4 of this convincing judgment that, “Learned HCGP for the State submitted that the survivor is aged about 16 years as of date, and the offences alleged against the petitioner are heinous and crime against the society and the same cannot be compounded.”
Be it noted, the Bench then notes in para 5 of this remarkable judgment that, “The petitioner and the survivor represented by her natural guardian i.e., mother have filed a joint affidavit stating that the sexual intercourse between them and the solemnization of their marriage was a consensual one since they were in relationship. From the said wedlock, a male child was born on 01.12.2023 and the birth certificate issued to that effect by the Registrar of Birth is annexed to the joint affidavit. They have also annexed their identity proof in the form of aadhar cards. They have further stated that they would register their marriage with the registrar of marriage upon the survivor attaining the age of majority.”
Quite significantly, it is definitely worth noting and cannot be just glossed over ever that the Bench then notes succinctly in para 6 of this progressive judgment that, “The survivor is aged 16 years as of today. The survivor and her newly born child are dependent on the petitioner for their livelihood, and there are no other means of seeking livelihood. The parents of the survivor, who were present before this Court on 29.12.2023 have expressed their inability to maintain the survivor, and the child since they come from an economically weaker section. The petitioner is in judicial custody and is unable to support the survivor and the child. If the criminal proceedings are allowed to continue, it would result in incarceration causing more misery and agony to the survivor and her child rather than securing the ends of justice.”
Finally and far most significantly, we need to pay our full attention that the Bench then very rightly concludes by mandating and holding in para 7 that, “The object of POCSO Act is to protect minors from sexual abuse and not to criminalize the consensual relationship between two adolescents who had consensual sexual intercourse without knowing the consequences. The petitioner and the survivor come from the lower socio economic segment having limited access to information and knowledge, thus depriving them about the consequences in having consensual sexual intercourse. Though having sexual intercourse consensually with the minor is an offence under the POCSO Act, however, having regard to the facts and circumstances of the case, to secure the ends of justice, it would be appropriate to quash the impugned proceedings, otherwise, it would result in miscarriage of justice to the survivor and the child. Accordingly, petition is allowed. The impugned proceedings in Special C.C. No.2432/2023 on the file of the Additional City Civil and Sessions Judge, FTSC-III, Bengaluru, is hereby quashed. The petitioner to be released from judicial custody forthwith, if he is not required in any other case.”
All said and done, we thus see that it is indubitably clear that the Karnataka High Court has made it absolutely clear not leaving even an iota of doubt to linger or lurk in the mind of anyone that the POCSO Act is definitely not meant to be used to criminalize consensual relationships of adolescents but to protect them from sexual abuse. We thus see that the Karnataka High Court very rightly, robustly and rationally quashed the criminal proceedings against the petitioner and so also ordered his immediate release from judicial custody. We also need to note here that the parents of the girl have very explicitly expressed their inability to maintain her as has been pointed out in this noteworthy judgment also and so also the newborn since they come from an economically weaker section of the society.
In such circumstances, it cannot be lost sight of that jailing the petitioner would practically serve just no purpose at all and would only make the life of the survivor and the newborn more miserable which has to be taken into consideration and it must be borne in mind that the Karnataka High Court took also this into account and therefore ordered the immediate release of the petitioner from judicial custody. There can be thus no gainsaying that all the courts must always definitely pay heed to what the Karnataka High Court has ruled so elegantly, eloquently and effectively in this leading case and emulate it in similar such cases. There can be just no denying or disputing it!
Sanjeev Sirohi