delhi high court

Delhi High Court: In a petition filed seeking a declaration to the effect that Section 198(6) Criminal Procedure Code (CrPC) to the extent inconsistent with the provisions of Protection of Children from Sexual Offences Act, 2012 (POCSO) as unconstitutional & ultra-vires and liable to be struck down, the provisions of Section 19 read with Section 21 of the Protection of Children from Sexual Offences Act, 2012 requiring mandatory reporting of offence being committed under the Act overrides the restrictions being imposed under Section 198(1) read with 198(3). A division bench of Manmohan and Saurabh Banerjee, JJ., held that mandatory reporting provisions of POCSO Act shall override the restrictions imposed under Section 198 (1) read with 198 (3) Criminal Procedure Code.

The petition seeks declaration broadening the definition of ‘person’ under 198(3) who intends to complaint on behalf of a person under the age of eighteen years, specifically to include Childline (1098), Child Welfare Committee and other agencies as provided under the Juvenile Justice (Care and Protection of Children) Act, 2015, so to empower them with responsibility. It further seeks declaration for harmonious and purposive amendment of provisions of 198(6) CrPC allowing minor victims of marital rape to have benefits of file compliant till the age of 20 years in consonance with the provisions of Section 3(3) of the Prohibition of Child Marriage Act, 2006.

The Court noted that the POCSO Act is a special law that comprehensively deals with heinous crimes of sexual abuse and sexual exploitation of children. Before the enactment of this Act in 2012, some sexual offences against children were prosecuted under the IPC. Thus, there is no distinct category within child victims of rape as those who are married and those who are not.

The Court remarked that when a general law and a special law dealing with some common aspects are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the Latin maxim of ‘generalia specialibus non derogant' i.e., general law yields to special law should they operate in the same field on the same subject.

The Supreme Court in Independent Thought v. Union of India, (2017) 10 SCC 800, reconciled the POCSO Act with IPC and held that Exception 2 to Section 375 IPC shall now 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.” Section 42A of the POCSO Act specifically provides that in case of any inconsistency, the provisions of POCSO Act shall have an overriding effect on the provisions of any such other law to the extent of the inconsistency.

Thus, the Court held that Section 19 read with Section 21 of the POCSO Act shall override the restrictions imposed under Section 198(1) read with Section 198(3) of CrPC.

[Independent Thought v. Union of India, 2023 SCC OnLine Del 2570, decided on 03-05-2023]

Advocates who appeared in this case :

Mr. Vikram Srivastava and Ms. Shalu, Advocates.

Ms. Monika Arora, CGSC with Mr. Yash Tyagi and Mr. Subhrodeep, Advocates for UOI.

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