Madras High Court: Pursuant to the administrative order of the Acting Chief Justice a division bench was constituted to monitor the implementation of provisions of the Protection of Children from Sexual Offences (‘POCSO’) Act and Juvenile Justice (Care and Protection) Act, 2015 on the judicial side. The division bench of N. Anand Venkatesh* and Sunder Mohan, JJ. has directed the Director General of Police (‘DGP’) to identify cases involving consensual relationship from among the 1274 pending cases. Further, it discontinued the two-finger test and the archaic potency test.
The Court took note of the previous order passed on 16-06-2023, wherein the Court directed the investigation officer to file the final report before the Juvenile Justice Board, on or before 30-06-2023 and before the Court.
The Court said that while passing the previous order, the Court’s attention was drawn towards a case where below 18 years old boy and girl eloped. The girl also became pregnant. Unfortunately, the boy was said to have been arrested without issuing Section 41-A notice under Code of Criminal Procedure, 1973 (‘CrPC’).
The Court said that the instructions given by the POCSO Committee, and the circular issued by the DGP have not percolated into the system. If really the instructions and the guidelines were followed in letter and spirit, there was no reason as to why the girl had to spend nearly a month in the home and boy had to spend nearly 20 days in the Place of Safety. The Court was shocked that both of them are children in the eye of law, but the girl was treated as a victim and the boy was treated as a child in conflict with law.
The Court remarked that this case is a wakeup call to ensure that such incidents at least do not happen in the future. Further, the Court expressed sadness that none of the stakeholders were sensitive to the fact that both the boy and the girl were under 18 years, and both are categorised as children under the relevant enactment.
The Court said that these pending criminal proceedings are an abuse of process of law and the continuation of such proceedings will adversely affect the interest and future of both the girl and the boy. Thus, the Court exercise our jurisdiction under Article 226 of the Constitution of India read with Section 482 of CrPC.
After going through the status report filed by the Additional DGP, the Court said that for the period from 2010 to 2013, a total of 1728 cases were registered. Out of these, 1274 cases are pending. The pendency has been categorized under three heads, viz., cases which are under investigation; cases where investigation has been completed and the final report is yet to be taken on file; and cases where the trial is pending.
Further, the Court said that having gathered this data, the next step to be taken is to ascertain all those cases falling under the category of consensual relationship out of the 1274 cases. If those cases are segregated from the pending cases, it will be easy to deal with them and in appropriate cases, the Court can also exercise its jurisdiction and quash the proceedings, if the proceedings are ultimately going to be against the interest and future of the children involved in those cases and it is found to be an abuse of process of Court / abuse of process of law.
The Court said that there is lack of sensitivity / empathy on the part of Child Welfare Committee (‘CWC’) and the Juvenile Justice Board, wherein a case a victim girl is mechanically detained in a home when it is not warranted, when she can be sent along with her parents. The Social Welfare Officers and the Police seem to be acting as per the directions of CWC and Juvenile Justice Board without any independent say. Hence, the CWCs and the Juvenile Justice Boards must be sensitized. The sensitization programs must be conducted by the Legal Services Authority and the State Judicial Academy.
The Court discontinued the two-finger test and the archaic potency test. Further, it directed the DGP to instruct the Inspector General of Police of various Zones to collect a data by going through the medical reports prepared in all cases starting from 01-01-2023, involving sexual offence and see if any report given refers to the Two-Finger Test. If any such report is identified, it shall be collected and brought to the notice of the Court, on which the Court will pass further orders.
Further, the Court directed the respondents to come up with a standard operating procedure for conducting Potency Test by merely collecting the blood sample, as the Potency Test is done by collecting sperm from the offender and this is an old age method.
Moreover, the Court gave the following directions:
• The respondents are directed to come up with a plan of action to be taken on each issue that has been flagged in the reports filed before this Court.
• The copy of the reports filed before the Court shall also be circulated to the respective Bar Associations both in the Principal Seat as well as the Madurai Bench to enable the Bar to come up with their suggestions and to assist the Court.
• The DGP was directed to identify cases involving consensual relationship from among the 1274 pending cases and a separate list shall be placed before this Court. While identifying those cases, a brief note on the facts of the case shall be prepared to enable the Court to understand and take a decision accordingly. The brief note shall also be accompanied with the Section 164 statement recorded from the victim.
• The same exercise shall be done by the DGP, Puducherry from out of 29 pending cases placed before this Court.
The matter will next be taken up on 11-08-2023.
[Kajendran v. Superintendent of Police, H.C.P. No. 2182 of 2022, Order dated 7-07-2023]
*Order Authored by: Justice N. Anand Venkatesh