REDEFINING RAPE
Injustice With Adolescent Boys : MP HC Requests Centre To Consider Reducing Consent Age Of Victim From 18 To 16 Years In Rape Cases
In a very significant development, we witnessed how just recently the Gwalior Bench of Madhya Pradesh High Court in a learned, logical, landmark, laudable and latest judgment titled Rahul Chandel Jatav v. The State of Madhya Pradesh & Anr in Misc. Criminal Case No. 24691 of 2023 that was pronounced as recently as on June 27, 2023 has requested the Government of India to think, deliberate and contemplate about reducing the consent age of the victim from 18 to 16 years in rape cases as defined by the Protection of Children from Sexual Offences (POCSO) Act saying that injustice is going on with the adolescent boys who enter into consensual sexual relationship. We ought to take into account the irrefutable fact that the Court urged the Central Government to seriously consider reducing the age of consent from 18 to 16 as existed earlier prior to amendment of 2013 to avoid the “injustice” of adolescent boys being treated as criminals while scrapping an FIR against an adolescent boy accused of rape. This recommendation was made during the court’s examination of a petition that was filed by a 17-year-old-boy who had been charged under the POCSO Act following a complaint lodged by a 14-year-old girl in Gwalior of repeatedly raping her for six months and impregnating her in April 2020. The Court noted that ‘The Criminal Law (Amendment) Act of 2013 which raised the age of consent for sexual intercourse by girls from 16 to 18 years has “disturbed” the fabric of society. Further, the Court also observed that the increase in the age of consent to 18 years has led to adolescent boys being treated as criminals in society, resulting in unfairness. It must be noted that the Bench also noted that due to their exposure to social media, adolescents were “getting puberty in early age” and entering into consensual sexual relationships before turning adults.
It must be also mentioned here that the 17-year-old-boy was arrested in July 2020 and booked under Section 376 of the Indian Penal Code and relevant Sections of the Protection of Children from Sexual Offences Act (POCSO) Act. It also deserves mentioning that what is most lamentable is that the 17-year-old-boy also remained in prison without bail for the next three years. The Court before parting with the case unequivocally held that female and male children are getting attracted to each other which is resulting in physical relationships with consent and hence, in such cases, male persons are not at all criminal. So it is no wonder that the High Court allowed the plea and in the fitness of things quashed the FIR as well as proceedings against the petitioner.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Deepak Kumar Agarwal of Gwalior Bench of Madhya Pradesh High Court sets the ball in motion by first and foremost putting forth in the opening para itself that, “This petition has been filed under Section 482 of the Cr.P.C. for quashing of the FIR registered at Crime No. 378/2020 at Police StationThatipur, District, Gwalior under Sections 376(2)(F)(n), 376(3), 315 of IPC as well as under Section 5(L)(O)/6 of POCSO Act and 66 of IT Act as well as the Sessions Trial No.124/2020 pending before learned 13th Additional Sessions Judge, and Special Judge POCSO Act, Gwalior.”
To put things in perspective, the Bench while dwelling on the facts of the case envisages in the next para of this notable judgment that, “In brief, facts of the case are that prosecutrix lodged a complaint against petitioner alleging that she is used to go to take coaching classes from present petitioner at Yadav Bhawan. On 18.01.2020, in the morning 7 AM, when she reached to Yadav Bhawan for classes, there were no one present on the said coaching and thereafter, petitioner gave her Juice to drink, thereafter, she became unconscious. Afterwards, present petitioner committed sexual intercourse with her and made video of her. Thereafter, in the pretext of viralling the video, he used to make physical relationship with her many times. When she came to know in April that she was pregnant, she told Rahul, then he fed her a tablet which caused her miscarriage. Rahul used to come to her house several times through the roof and made physical relationship with her. Beside this, prosecutrix also knows one Mukesh Chokotia for the last four years. Mukesh Chokotia used to study with her in school. Mukesh was her distant relative. In 2016, Mukesh also in the pretext of marriage many times made physical relationship with her. On 16/07/2020 at 12:00 noon, Mukesh came to her locality and snatched her mobile and assaulted her with stick. He had sent her photos on her sister’s mobile. Mukesh also used to come to her house and he committed sexual intercourse with her many times. On her report FIR bearing Crime No.378/2020 for the offence punishable under Sections 376(2)(n), 323, 506 of IPC and Section 3/4 of POCSO Act was registered against them.”
On the one hand, the Bench mentions in the next para of this robust judgment that, “Learned counsel for the petitioner made submission that after about seven months on 17.07.2020, a false FIR has been lodged. Beside this, if any intercourse has been done, the same was with her consent, there was no force involved in it. There was no evidence of any penetration of sexual assault. In this regard, he has placed reliance on the judgment of High Court of Meghalaya At Shillong passed in Crl. Petn. No.3 of 2003 (Shri. John Franklin Shylla Vs. State of Meghalaya & Anr). Learned counsel for the petitioner has also placed reliance on the judgment of Hon’ble Supreme Court in the case of State of Rajasthan Vs. Tarun Vaishnav & Anr. passed in SLP (Crl) No. 1890/2023. With aforesaid submissions, he prayed for quashment of impugned FIR as well as all the consequential proceedings arising out of the said crime.”
On the other hand, the Bench then states in the new para of this learned judgment that, “Learned Panel Lawyer for the State made submission that it is true that FIR is belated, but at the time of incident prosecutrix was minor. Hence, prayed for dismissal of this petition.”
The ongoing engagement of the Government of India with the Special Representative of the Secretary General (SRSG) sped up after an inter-ministerial meeting was held in November 2021 with Shri Indevar Pandey, the Secretary Ministry of Women and Child Development , Ministry of External Affairs, Permanent Mission of India at New York, and the MHA from the Government of India, and Ms Virginia Gamba, Special representative of the Secretary-General for Children and the UN officials in New Delhi. It led to an agreement to appoint a national focal point to identify priority national interventions to enhance protection of children, joint technical mission to hold inter-ministerial, technical-level meetings with the UN to identify areas of enhanced cooperation for child protection.
Under the guidance and leadership of Smt. Smriti Zubin Irani, Union Minister of Women And Child Development, a road map for cooperation and collaboration on child protection issues was developed by the Ministry.
The technical team of the office of the SRSG visited India on 27-29 July 2022. This was followed by a workshop on strengthening child protection held in Jammu & Kashmir in November, 2022 by the Ministry of WCD in collaboration with the MHA, and the Govt. of J&K with the participation of the United Nations. All statutory service delivery structures like the Child Welfare Committee and Juvenile Justice Boards under the Juvenile Justice (Care and Protection of Children) Act 2015 have been established.
In view of the measures taken by the Government to better protect children, India has been removed from the report in 2023.
The United Nations Secretary-General Antonio Guterres has stated that “measures taken by the government to better protect” children had been taken, hence India was removed for the first time since 2010.
In the report, Guterres welcomed the engagement of the Government of India with his special representative and acknowledged the possibility of India being removed as a situation of concern. He took note of the technical mission conducted by the Office of the Special Representative in July 2022, which aimed to identify areas of cooperation for child protection.
Additionally, Guterres acknowledged the workshop on strengthening child protection that was organised by the Indian government in Jammu and Kashmir in November 2022, with the active participation of the United Nations.
The Secretary-General also urged India to implement the remaining measures, which were identified in consultation with his special representative and the United Nations. These measures include providing training on child protection to armed and security forces, prohibiting the use of lethal and non-lethal force on children (including the discontinuation of pellet guns), ensuring that children are detained only as a last resort and for the shortest necessary duration, preventing all forms of ill-treatment during detention, and fully implementing the Juvenile Justice (Care and Protection of Children) Act and the Protection of Children from Sexual Offences Act.
