Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 8 -- Indian Penal Code, 1860 (45 of 1860), Sections 354, 452 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – POCSO matter – Compromise between the parties – Regular bail -- Allegations that while victim’s parents were away, the accused/petitioner gained forcibly entry into her room and scuffled with her -- It is only when the victim called out to her sister that the accused ran away  -- Petitioner was arrested on 29.05.2020 – Investigation in the case is complete and the challan already stands presented -- It is not a case of sexual assault – Compromise has since been effected with the intervention of the village elders – Petitioner is held entitled to the benefit of bail.

(Para 7-13)

Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4, 12 -- Indian Penal Code, 1860 (45 of 1860), Sections 363, 366-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Run-away marriage – FIR under POCSO/IPC – Compromise between parties – Regular bail – Now victim has been residing at her matrimonial home -- Petitioner has been in custody since 06.6.2020 -- Trial will take time to conclude -- No useful purpose would be served by keeping the petitioner behind the bars -- Without commenting anything on the merits of the case, the petition allowed and the petitioner is ordered to be released on bail.

(Para 2-7)

Punjab Good Conduct Prisoners’ (Temporary Release) Act, 1962 (11 of 1962), Section 5-A -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4 – Parole – Hardcore criminal – Penetrative sexual assault -- Petitioner convicted u/s 4 of the POCSO Act, which is more heinous crime than Section 376 IPC -- So, he falls under the definition of hard core prisoner and as per as per the provision of Section 5-A of the Amendment Act, 2015, hardcore prisoners are not entitled to release on parole under this Act, hence the petitioner is not entitled to be released on parole.

(Para 8)

A. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 3, 4, 5, 6 – Indian Penal Code, 1860 (45 of 1860), Section 376 – Rape case -- Penetrative sexual assault -- Non-production of DNA report – Effect of -- Prosecutrix narrated the incident that the appellant committed penetrative sexual assault on her -- She was grilled in cross-examination but she stuck to her ground -- Victim narrated the entire incident to her aunt first of all as her parents were not at home -- Prosecution examined victim’s paternal aunt and doctor who had examined the victim and prepared her MLR -- Report of the FSL has been produced, wherein it was opined that human semen was detected on the vaginal swabs, salwar and underwear of the victim -- In view of the aforesaid evidence, mere non-production of the DNA report would not be sufficient to discard the evidence of the prosecution – Appeal against conviction dismissed.

(Para 10-19, 23)

B. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 3, 4, 5, 6 – Rape case -- Penetrative sexual assault – sentenced to less than minimum sentence – Non-filing of appeal by State – Effect of -- Punishment awarded by the Ld. trial Court is below the minimum sentence provided under the POCSO Act -- Since there is no appeal filed by the State, High Court did not find it appropriate to re-open the question of sentence.

(Para 20-22)

Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4 -- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Compromise between the parties – Regular bail -- Investigation is already over and challan has also been filed -- Prosecutrix seems to have made complaint under the pressure of her parents, which led to registration of FIR in question -- Petitioner is in custody since 15.03.2020 -- Trial is not likely to commence or conclude any time soon on account of current pandemic conditions due to COVID-19 -- Petition allowed, petitioner is ordered to be released on regular bail.

(Para 1, 7-10)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 -- Indian Penal Code, 1860 (45 of 1860), Sections 363, 366-A, 368, 376(2) (n), 120-B – Rape case – Minor girl aged 15 years – Compromise between parties – Regular bail – Statement u/s 164 Cr.P.C., the victim has stated that she had left the house alongwith accused of her own and they had established physical relations with each other -- She also stated that she wanted to marry with accused -- Interim bail for a period of one month to perform marriage with the victim granted -- Marriage with the victim solemnised on 21.07.2020 -- Petitioners (Husband and brother-in-law) have been in custody since January, 2020, challan has already been presented -- Victim and her parents have given statements in favour of the petitioners -- Trial of the case would take time to conclude -- Ordered to be released on bail.

(Para 3-11)

A. Indian Penal Code, 1860 (45 of 1860), Section 366-A -- Procuration of Minor girl – Doubt created by defence – Consideration of -- Sweeping generalisations and superficial analysis – Permissibility of -- Reasoning is generic and is premised upon generalisations which may not be necessarily true always -- It is indisputable that parents would not ordinarily endanger the reputation of their minor daughter merely to falsely implicate their opponents, but such clichés ought not to be the sole basis of dismissing reasonable doubts created and/or defences set out by the accused.

(Para 10)

B. Indian Penal Code, 1860 (45 of 1860), Section 366-A -- Code of Criminal Procedure, 1973 (2 of 1974), Section 154 -- Procuration of Minor girl -- Father eye-witness – Delay in 5 days in FIR – Effect of -- Five-day delay in registration of the FIR gains importance -- Difficult to appreciate that a father would await a second incident to happen before moving the law into motion -- Sweeping assumptions concerning delays in registration of FIRs for sexual offences, send a problematic signal to society and create opportunities for abuse by miscreants -- Instead, the facts of each individual case and the behaviour of the parties involved ought to be analysed by courts before reaching a conclusion on the reason and effect of delay in registration of FIR.

(Para 11)

C. Constitution of India, Article 136 – Indian Penal Code, 1860 (45 of 1860), Section 366-A -- Re-appreciation of evidence by Supreme Court -- Ordinarily, the Supreme Court ought not to reappreciate evidence -- However, where the courts below have dealt with the material-on-record in a cavalier or mechanical manner which is likely to cause gross injustice, then the Court in such exceptional circumstances may justifiably reappraise the evidence to advance the cause of justice -- Such re-assessment ought not to take place routinely and ought not to become substitution of an otherwise plausible view taken by the Courts below.

(Para 16)

D. Indian Penal Code, 1860 (45 of 1860), Section 366-A -- Procuration of Minor girl -- Contradictions highlighted by defence -- Reversal of Burdon of proof – Permissibility of -- Trial Court has summarily disregarded the contradictions highlighted by the defense side, on the premise that such contradictions had no material bearing and that there was no reason to disbelieve the prosecutrix -- High Court too has opined that PW-1 and PW-2 have completely corroborated each other and their testimonies were impeccable -- These reasons are not only contrary to the record but they also lead to an impermissible reversal of the burden of proof imposed in criminal trials.

(Para 17)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 313 – Plausible version by accused – Analysis of – Requirements of law -- Any alternate version of events or interpretation proffered by the accused must be carefully analysed and considered by the trial Court in compliance with the mandate of Section 313(4) -- Such opportunity is a valuable right of the accused to seek justice and defend oneself -- Failure of the trial Court to fairly apply its mind and consider the defence, could endanger the conviction itself -- Unlike the prosecution which needs to prove its case beyond reasonable doubt, the accused merely needs to create reasonable doubt or prove their alternate version by mere preponderance of probabilities – Held, once a plausible version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defense plea.

(Para 21)

F. Indian Penal Code, 1860 (45 of 1860), Section 506 -- Criminal Intimidation -- Proving the intention to cause alarm or compel doing/abstaining from some act, and not mere utterances of words, is a pre-requisite of successful conviction under Section 506 of IPC -- Trial Court has undertaken no such separate analysis or recorded any finding on this count, thus calling into question the conviction for criminal intimidation – Conviction set aside.

(Para 25, 26)

Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 -- Indian Penal Code, 1860 (45 of 1860), Section 363, 366-A – Kidnaping – Compromise quashing – Petitioner and girls were minor at relevant time -- No evidence of actual commission of an offence under the POCSO Act, warranting to take a stricter view – Fit case for exercise of inherent powers so as to give a quietus to the issue – FIR and all proceedings pertaining thereto are quashed.

(Para 1, 5-8)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Indian Penal Code, 1860 (45 of 1860), Sections 376(2)(n), 376(2)(f), 376(3) -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Rape – Regular bail -- Prosecutrix and her mother have not supported the prosecution case, the petitioner is in custody for almost a year -- Covid 19 pandemic and conclusion of the trial is likely to take some time -- Concession of regular bail granted to the petitioner.

(Para 5)

A. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 1 -- POCSO Act was enforced on 14.11.2012, therefore, the incident which occurred on the eve of Lohri festival in 2011 cannot be made basis to try and convict the appellant under POCSO Act.

(Para 28)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 154, 164 – Contents of FIR – Statement u/s 164 Cr.P.C. – Deposition before court – Improvements  in -- Slight change in the facts -- One cannot be expected to have eidetic/photographic memory -- Natural variation do happen and such depositions are considered and relied upon by the courts after its careful analysis.

(Para 34)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 154 – FIR – Contents of -- FIR is not expected to be an encyclopaedia of the entire case of the prosecution -- An FIR is a mere first information sent to the prosecuting agency for setting criminal law in motion -- It is wrong to expect that in the FIR, complete detail of all the incidents must be disclosed -- An FIR is not expected to contain the proposed evidence to be produced by the prosecution.

(Para 35)

D. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 8, 42 -- Indian Penal Code, 1860 (45 of 1860), 354-A -- Sentence cannot be awarded both under POCSO Act and Indian Penal Code simultaneously with respect to the offences enlisted in the Section 42 of POCSO Act -- Section 354-A overlaps to certain extent with offence u/s 7 of POCSO Act – Trial court committed an error in convicting the appellant u/s 354-A IPC as well as Sections 8 of POCSO Act -- Sentence awarded to the appellant u/s 354-A is set aside.

(Para 51, 52)

Indian Penal Code, 1860 (45 of 1860), Section 376, 354-A, 34 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4, 8 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Regular bail -- Petitioner is in custody since 09.08.2019 -- Prosecutrix has denied the fact that the petitioner established physical relations with her -- Prosecutrix was got declared hostile by the prosecution – It would not be appropriate to further continue to incarcerate the petitioner – Conclusion of the trial is likely to take time, hence, the petitioner is directed to be released on regular bail.

(Para 7,8)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Indian Penal Code, 1860 (45 of 1860), Section 377, 34 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Unnatural offence – Regular bail -- Record or the circumstances of the case do not show that there is any reasonable ground for believing that the petitioner is likely to bring himself into association with known criminals if released on bail; or that he will expose himself to some moral, physical or psychological danger – Policy and provision of the Juvenile Justice Act is in favour of grant of bail to the juvenile -- Since the circumstances or the grounds justifying denial of the bail are not discernible in the case, therefore, the petitioner deserve to be allowed concession of bail.

(Para 1, 5-7)

Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 -- Indian Penal Code, 1860 (45 of 1860), Section 376 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Rape case – Compromise quashing -- Complainant stated that she wants to marry accused – Compromise has been effected, which is without any pressure or coercion -- FIR registered u/s 376 IPC and Section 6 of POCSO Act and all subsequent proceedings arising out of the same qua petitioner are quashed.

(Para 10,11)

Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Indian Penal Code, 1860 (45 of 1860), Sections 363, 323, 148, 149 – Kidnapping matter -- Compromise quashing of FIR -- Since the parties have arrived at a compromise and have decided to live in peace, no useful purpose would be served in allowing the criminal proceedings to continue -- FIR u/s 363, 323, 148, 149 IPC and all the subsequent proceedings arising therefrom are ordered to be quashed qua the petitioners.

(Para 9,10)

Code of Criminal Procedure, 1973 (2 of 1974), Section 82, 482 -- Indian Penal Code, 1860 (45 of 1860), Section 363, 365, 366-A -- FIR u/s 365 – Challan u/s 363, 366-A – Run-away couple marriage – Proclaimed person -- Compromise quashing of FIR – Petitioner no.1/girl had gone out of her own free will and solemnised marriage with petitioner no.2 -- Offence u/s 363, 366A of IPC not made out against the petitioner no.2 – Petition for police protection was also filed by the petitioners -- FIR and all consequential proceedings including order declaring petitioner No. 2 as proclaimed person being abuse of process are liable to be quashed for securing the ends of justice -- In view of the settlement between the parties, the possibility of conviction is remote and bleak -- Continuation of the criminal case will subject petitioner No. 2 to great oppression and injustice – FIR and consequential proceedings including order declaring petitioner no. 2 as proclaimed person are quashed.

(Para 11-16)

Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Indian Penal Code, 1860 (45 of 1860), Section 363, 366 -- Kidnapping – Run-away couple – Compromise quashing of FIR -- Offence of kidnapping is serious and non-compoundable and the Courts should not in the ordinary circumstances interfere and quash the FIR registered -- However, there are always exceptions to the normal rules and certain categories of cases, which deserve consideration specially when it is case of love affair between teenagers and on fear of the society and pressure from the community, one party alleges kidnapping, cases where the accused and the victim are well known to each other, and allegation of kidnapping is levelled only because the marriage was performed against the wishes of the parents -- FIR registered u/s 363, 366 and 120-B IPC and all subsequent proceedings are quashed.

(Para 5-10)

Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Indian Penal Code, 1860 (45 of 1860), Section 363, 366-A – Kidnapping – Compromise quashing of FIR -- Petitioners have solemnised marriage and the complainant, who is mother of petitioner No.1, has suffered a statement before learned Magistrate in support of compromise -- Continuation of the proceedings before the trial Court in the instant FIR qua the petitioners shall be an abuse of the process of law -- FIR u/s 363 and 366-A IPC and all consequential proceedings arising therefrom are quashed.

(Para 6,7)

Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Indian Penal Code, 1860 (45 of 1860), Section 354-D – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 12 – Compromise quashing -- Compromise is found genuine, voluntarily and without any coercion or undue influence -- Taking into consideration the nature of allegations and the fact that the matter has been compromised between the parties FIR u/s 354-D IPC and Section 12 of POCSO Act and all the consequential proceedings arising therefrom are quashed.

(Para 11, 12)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Review of order in criminal proceedings – Power of High Court -- High Court could not have recalled its earlier order u/s 482 Cr.P.C, inasmuch as there is no provision for recalling or reviewing an order passed by it in criminal matters.

(Para 2)

B. Prohibition of Child Marriage Act, 2006 (6 of 2007), Section 2(a), 2(b), 9 – Child marriage – Adult Wife -- Prosecution of boy aged 17 years – Permissibility of -- Protection order passed in favour of married couple – Later-on boy age found to be 17 years – On application of father of girl, High Court recalled protection order and direction given for registration of FIR against boy for offence u/s 9 of Prohibition of Child Marriage Act, 2006 – Held, High Court could not have recalled its earlier order and there was no exceptional circumstance calling for an exercise of the High Court’s inherent powers – FIR quashed.

(Para 2-6)

C. Prohibition of Child Marriage Act, 2006 (6 of 2007), Section 2(a), 2(b), 9 – Adult Wife -- Boy aged 18 to 21 years – Child marriage -- Prosecution of boy – Permissibility of -- Held, it can be treated as a child marriage but cannot be brought under the ambit of Section 9 -- FIR against boy quashed.

(Para 3-6)

D. Prohibition of Child Marriage Act, 2006 (6 of 2007), Section 2(a), 2(b), 9 – Interpretation of Statute -- Mischief Rule -- Marginal note -- Adult Wife -- Boy aged 18 to 21 years – Child marriage -- Prosecution of boy -- Intention behind punishing only male adults contracting child marriages is to protect minor young girls from the negative consequences thereof by creating a deterrent effect for prospective grooms who, by virtue of being above eighteen years of age are deemed to have the capacity to opt out of such marriages – Hence, cannot be brought under the ambit of Section 9, as this is not the mischief that the provision seeks to remedy -- Marginal note of Section 9, which reads “Punishment for male adult marrying a child” -- Where any ambiguity exists with regard to the interpretation of a legislative provision, the marginal note can be used in aid of construction, having regard to the object of the legislation and the mischief it seeks to remedy – Held, the words “male adult above eighteen years of age, contracts a child marriage” in Section 9 of the 2006 Act should be read as “male adult above eighteen years of age marries a child”.

(Para 3)

A. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 5, 6 -- Constitution of India, Article 15(3) -- Marital rape with girl child -- Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? – Held, Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not -- Exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved -- Artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child -- Artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions -- Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

 (Para 1, 105)

B. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 5, 6 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 2(12, 2(14) -- Prohibition of Child Marriage Act, 2006 (6 of 2007), Section 3 -- Marital rape/ Sexual inter-course with wife aged 15 to 18 years – Harmonious and purposive interpretation -- Entire issue of the interpretation of the JJ Act, the POCSO Act, the PCMA and Exception 2 to Section 375 of the IPC can be looked at from the perspective of purposive and harmonious construction of statutes relating to the same subject matter – There seems to be no reason to arbitrarily discriminate against a girl child who is married between 15 and 18 years of age -- Exception 2 to Section 375 of the IPC is to be read in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child -- To harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

(Para 99, 103, 105,108)

C. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 –Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 5, 6 -- Constitution of India, Article 14, 15, 21 -- Sexual inter-course with wife aged 15 to 18 years – Marital rape with girl child below 18 years -- Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:–

(i)      it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India;

(ii)     it is discriminatory and violative of Article 14 of the Constitution of India and;

(iii)    it is inconsistent with the provisions of POCSO, which must prevail.

Therefore, Exception 2 to Section 375 IPC is read down as follows:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”.

This judgment will have prospective effect.

(Para 195)

D. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 198(6) -- Sexual inter-course with wife aged 15 to 18 years – Martial rape with wives below 18 years – Cognizance of -- Section 198(6) of the Code will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code.

(Para 196)