In RE: Right to Privacy of Adolescents (2025), Supreme Court's Division Bench of Justices Abhay S. Oka and Ujjal Bhuyan) observed:"After having read the reports and having interacted with the Committee as well as the victim, we are of the view that if we send the accused to jail, the worst sufferer will be the victim herself. As compared to the situation in 2018, she is better placed today. Now she is comfortable with her small family. She along with the accused, is concentrating on their daughter and the want to ensure that she gets quality education. At the same time, as recorded in the final report, the victim is attending school and is desperate to complete her school education. Though the State has offered to enroll her in some vocational course, she is keen on completing her education, at least up to graduation."
The Criminal Appeal was preferred by the State of West Bengal against the judgment and order dated October 18, 2023, passed ny a Division Bench of the Calcutta High Court. In Suo Motu Writ Petition, Supreme Court’s attention was drawn to certain objectionable observations made in the High Court's judgement. The former court took note of the systemic failure of the State to protect the victim, resulting in her fate and wellbeing being ultimately tied up with that of the accused. Accordingly, in this judgement, we are dealing with the issue of sentencing the accused arising out of the criminal appeal and the
In the Suo Motu Writ Petition, the Court dealt with are the issue of rehabilitation of the victim and her child. The Suo Motu writ petition was initiated based on the directions issued by the Chief Justice of India for challenging the impugned judgment. The State Government had preferred the criminal appeal to challenge the order of acquittal.
The Court considered three issues. The first issue is of sentencing the accused. The second issue is about the rehabilitation of the victim and her child. The third issue is a wider issue about adopting measures for adolescent wellbeing and child protection which goes to the root cause of the problem in our changing society.
The Court relied on the reports of the Court appointed 3-member Committee of Experts. In its preliminary report, it recorded "the victim’s struggles while tackling the legal system for securing the release of the accused." The final report provided details of all the interviews conducted by the Committee, including those off the victim, the accused, their respective families, teachers and management personnel at the school of the victim, investigating police officers, personnel at the welfare home—Sanlaap Sneha Home, and other relevant stakeholders. It highlighted the inadequate, inefficient implementation of the POCSO Act. It emphasized the “collective failure of the systems that are there to protect a girl child”. It stated that the loopholes were glaring, and that the elopement, the living in/marriage of the victim, the birth of a child—all were preventable.
The final report had specifically highlighted the failure of the Child Protection Committees at the village level; the inadequate implementation of the State of West Bengal’s “Kanyashree Prakalpa Scheme”;the inaction of the designated Child Welfare Officer at the local police station;lack of provision of free legal aid; lack of sufficient and effective counsellors from both genders in schools and even welfare homes;high frequency of elopements by children in class 8 and above;stigmatisation of girls in similar situations as the adolescent victim in the present case; irregularities and delays in the investigation of such crimes;inadequate accessibility to judicial fora and corruption and financial exploitation by touts, members of the Bar etc.; and lack of awareness and sensitisation among family, and public officials in respect of the POCSO Act and the sexual, emotional, and mental well-being of children.
The final report concluded that "in this particular case, it was not the legal crime which caused trauma on the victim, rather it was the legal battle which ensued consequent to the crime that is taking a toll on the victim."
The final report also concluded that though the incident was seen as a crime in law, the victim did not accept it as one. The Committee records that it was not the legal crime that caused any trauma to the victim, but rather, it was the consequences that followed, which took a toll on her. What she had to face as a consequence was the police, the legal system and the constant battle to save the accused from punishment. At the same time, she took care of her daughter to the best of her abilities, notwithstanding the huge financial burden she carried."
The final conclusion in the report is an eye opener. It reads:
“In conclusion, a heinous crime causes trauma in the psyche of the victim. In this case, the law saw it as a crime, the victim did not. Hence, the legal crime did not cause any trauma on this particular victim. It was the consequences thereafter – the police personnel, the legal system, the battle to save her husband and do the best for her daughter while having a financial burden, which is taking its toll on her. A young woman, who refuses to be called a “Victim”, fighting for her husband needs all the support that can be made available. It would be in the best interest of the child if the family structure can be restored.”
The judgment noted: "Though the victim did not treat the incident as a heinous crime, she suffered because of it. This was because at an earlier stage, the victim could not make an informed choice due to the shortcomings of our society, our legal system and her family. In fact, she did not get any opportunity to make informed choice. The society judged her, the legal system failed her, and her own family abandoned her. Now, she is at a stage where she is desperate to save her husband. Now, she is emotionally committed to the accused and has become very possessive of her small family."
The Special Judge appointed under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) had convicted the accused for the offences punishable under Section 6 of the POCSO Act and Sections 363 and 366 of the Indian Penal Code, 1860. For the offence punishable under Section 6 of the POCSO Act, the accused was sentenced to undergo rigorous imprisonment for twenty years and pay a fine of Rs.10,000/-. For the offences punishable under Sections 363 and 366 of the IPC, thea accused was sentenced to undergo rigorous imprisonment for four years and five years respectively and was also ordered to pay a fine of Rs. 2,000/-and Rs.5,000/- respectively. Though the Special Judge under the POCSO Act came to the conclusion that the accused was guilty of the offences punishable under clause (n) of sub-section (2) and sub-section (3) of Section 376 of the IPC, in view of the sentence imposed for the offence punishable under Section 6 of the POCSO Act, no separate punishment was imposed. The accused preferred Criminal Appeal (DB) 14 of 2023 before the Calcutta High Court against the conviction. The High Court by the Impugned Judgement dated October 18, 2023 purported to exercise its jurisdiction under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 to set aside the conviction of the accused for the aforesaid offences.
By a detailed judgement dated August 20, 2024, the Supreme Court had set aside the impugned judgment of the High Court and restored the verdict of the Special Court to the extent of the conviction of the accused for the offences punishable under clause (n) of sub-section 2 and sub-section (3) of Section 376 of the IPC and Section 6 of the POCSO Act. This Court confirmed the acquittal of the accused for the offences punishable under Sections 363 and 366 of the IPC. However, the sentencing was postponed for the reasons recorded in the judgment. In paragraph 2 of the said judgment, the basic facts of the case have been mentioned and in paragraph 3, the findings recorded by the High Court have been mentioned.
The paragraphs 2 to 5 of the High Court's judgment reads: “2. The victim girl was fourteen years old at the time of the incident. The victim’s mother lodged a First Information Report (FIR) on 29th May 2018. The victim’s mother stated in her complaint that the victim, who was her minor daughter, escaped from her home at 5:30 p.m. on 20th May 2018 without informing anyone. On inquiry, it was found that the accused enticed her to leave her house. The accused did so with the help of his two sisters. The victim’s mother repeatedly visited the house of the accused and requested him to facilitate the return of her daughter. However, the victim did not come back. A female child was born to the victim. Admittedly, the accused is the biological father of the child. There was a gross delay in the investigation, and the accused was arrested on 19th December 2021. The chargesheet was filed on 27th January 2022 against the accused for the offences for which he was convicted. In addition, the accused was charged with the offence punishable under Section 9 of the Prohibition of Child Marriage Act, 2006. The prosecution examined seven witnesses. We may note here that as the learned Special Judge under the POCSO Act found that there was no evidence of marriage between the victim and the accused, the charge under Section 9 of the 2006 Act was held as not substantiated."
Significantly, the High Court noted that the mother of the victim had disowned her and therefore, the victim was continuously residing with the accused along with their minor child.
The Supreme Court observed: "In law, we have no option but to sentence the accused and send him to jail for undergoing the minimum punishment prescribed by the Statute. However, in this case, the society, the family of the victim and the legal system have done enough injustice to the victim. She has been subjected to enough trauma and agony. We do not want to add to the injustice done to the victim by sending her husband to jail. We as Judges, cannot shut our eyes to these harsh realities. Now, at this stage, in order to do real justice to the victim, the only option left before us is to ensure that the accused is not separated from the victim. The State and the society must ensure that the family is rehabilitated till the family settles down in all respects."
It opined:"Ultimately, this Court is bestowed with extraordinary jurisdiction under Article 142 for the sole a position to do substantial justice in its truest sense. In the context of this situation, sadly, true justice lies in not sentencing the accused to undergo imprisonment. This case is not going to be a precedent and should not be a precedent. This case is an illustration of the complete failure of our society and our legal system. All that the system can do for the victim now, is to help her fulfil her desire of completing her education, settling down in life, providing a better education to her daughter and ensuring overall better living conditions for her family. This year we have completed 75 years of the Constitution on 26th January. The Constitution contemplates the State to be a welfare state. The Constitution guaranteed social and economic justice to all the citizens. In this case, there is a failure to provide both social and economic justice to the victim. The facts of the case indicate failure of the concept of welfare state. To remedy the situation in this case, it is the obligation of the State Government to act as the true guardian of the victim and her child and ensure that they settle down in life and lead a happy, healthy and constructive life ahead."
The 44-page long judgement reads: "we pass the following order: a) We exercise our extraordinary jurisdiction under Article 142 of the Constitution of India and hold that though the accused stands convicted, he will not undergo sentence for the reasons stated earlier; b)We direct the State to take following measures: i) To act as a true guardian of the victim and her child; ii) To provide a better shelter to the victim and her family within a period of few months from today; iii) To bear the entire expenditure of the education of the victim till Xth standard examination and if she desires to take up education for a degree course, till the completion of degree course. After she passes her Xth standard examination, the we pass the following order: a) We exercise our extraordinary jurisdiction under Article 142 of the Constitution of India and hold that though the accused stands convicted, he will not undergo sentence for the reasons stated earlier;
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