Mutual acts of love between minor couple not sexual assault under POCSO, says HC

Acts of mutual love and affection between a young couple will not amount to “sexual assault” under the Protection of Children Against Sexual Offences Act (POCSO Act), the Meghalaya high court said.

The high court stated this last week while quashing a case against an accused minor, while freeing him from any liability in the criminal case.

Hearing the case on October 27, the Court of Justice W Diengdoh held that though consent of a minor is immaterial as far as prosecution for an alleged offence of sexual assault is concerned, “…but considering the peculiar facts and circumstances of a particular case, such as in a case of a boyfriend and girlfriend particularly, if both of them are still very young, the term ‘sexual assault’ as could be understood under the POCSO Act cannot be attributed to an act where, there is, as pointed above, mutual love and affection between them.”

Justice Diengdoh was hearing a mutual petition filed by the accused minor and the mother of his girlfriend seeking to quash the case. The minor girl was residing with her teacher at a school. It was when the minor girl was found missing by the teacher on two occasions that the matter was reported to the parents. The mother then filed a complaint with the local police station.

Subsequently, upon discovering that the minor was having physical relations with the accused, who was her boyfriend, the police registered a First Information Report (FIR) under Section 5(l)/6 of the POCSO Act (aggravated penetrative sexual assault) against the boy. As a result, he was arrested and was jailed for ten months before getting bail.

During her deposition before a magistrate, the minor girl admitted that she had physical relations with the accused and that her relationship with him was consensual and of her own free will.

But the Investigating Officer filed a chargesheet against the accused on finding prima facie evidence against him. The case went to trial before the Special Judge (POCSO), Shillong when the petitioners moved the High Court on a mutual understanding, to get the case against the accused quashed.

The Court acknowledged that provisions of the POCSO Act were made stringent with the intent to address the deep emotional scars and the tremendous negative effect that such acts of sexual assault could befall on minor victims.

“What is even prevalent now is, what is known as ‘good touch’ and ‘bad touch’ where even a semblance of sexual overtone in the way an alleged perpetrator touches a child victim will make him liable for prosecution under the relevant provisions of the law,” the Court stated.

Nonetheless, in such cases, where a boyfriend and girlfriend indulge in mutual acts of love, the POCSO Act could not be invoked, the Court observed while quashing the case against the accused minor and freed him from any liability in the criminal case in the interests of justice.

Advocate K Gautam represented the petitioners, while the State was represented by Additional Public Prosecutors S Sengupta and H Kharmih.