SC overturns Calcutta HC verdict, calls remarks on adolescent girls "shocking"

The Supreme Court on Tuesday, 20 August set aside a Calcutta High Court order that acquitted an accused in a sexual-assault case and made "objectionable" remarks advising adolescent girls to "control sexual urges", saying these observations are "shocking" and perverse.

Restoring the conviction of the accused for rape and sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, a bench of Justices Abhay S Oka and Ujjal Bhuyan said his sentence will, however, depend on the report of a expert committee to be constituted by the West Bengal government for interacting with the victim, who is now married to the accused and residing with him with her minor daughter.

Deprecating the high court's verdict, the bench said a judge has to decide a case and not preach and his or her personal opinion cannot be made a part of a judgment.

"The high court went to the extent of observing that the case of criminalisation of a romantic relationship between two adolescents of opposite sex should be best left to the wisdom of the judiciary. The courts must follow and implement the law. The courts cannot commit violence against the law," the bench said.

Observing that brevity is the hallmark of a quality judgment, it said a verdict must be in simple language and should not be verbose and it must be remembered that an order is neither a thesis nor a piece of literature.

"We need not waste pages dealing with every observation or finding quoted above. The observations are utterly irrelevant for deciding the controversy. To say the least, these observations are shocking, which will ex-facie invite a finding of perversity," the bench said in its 50-page verdict.

The top court said it is the responsibility of the State to take care of the helpless victims of such heinous offences and time and again, the court has held that the right to live a dignified life is an integral part of the fundamental right guaranteed under Article 21 of the Constitution.

The child, who is the victim of offences under the POCSO Act, is also deprived of the fundamental right to live a dignified and healthy life, the bench said and added that immediately after the knowledge of the commission of a heinous offence under the Act, the State, its agencies and instrumentalities must step in and render all possible aid to the victim.

"Unfortunately, in our society, due to whatever reasons, we find that there are cases where the parents of the victims of offences under the POSCO Act abandon the victims. In such a case, it is the duty of the State to provide shelter, food, clothing, education opportunities etc. to the victims of the offences as provided in law," it said.

The bench added that even a child born to such a victim needs to be taken care of in a similar manner by the State.

"Sadly, in the present case, there is a complete failure of the state machinery. Nobody came to rescue the victim of the offence, and thus, for her survival, no option was left to her but to seek shelter with the accused," the bench said.

It further said "the importance of rehabilitation of the victims of offences under the POCSO Act, which is a mandatory requirement of law, is being overlooked by all stakeholders. Perhaps, at levels, there is a need for introspection and course correction. We include even the judiciary in that".

It directed the West Bengal government to constitute a committee of three experts, including a clinical psychologist and a social scientist, within three weeks for interacting with the victim at such a place as it desires to communicate what the state government is offering to her.

"The committee must also inform the victim about the availability of the benefits of the scheme of the Government of India. The duty of the committee shall be to help the victim to make an informed choice -- whether she wants to continue to remain in the company of the accused and his family or wants to avail of the benefits offered by the state government," the bench directed.

It said the committee shall submit a report in a sealed cover to the court by October 18, containing the details of the interactions with the victim and its own opinions and recommendations.

The court posted the matter for hearing on October 21 for considering the panel's report and sentencing the accused.

Dealing with the high court's reasoning on "non-exploitative sexual acts", the apex court said it fails to understand how a sexual act, which is a heinous offence, can be termed non-exploitative.

"When a girl who is 14 years old is subjected to such a horrific act, how can it be termed as non-exploitative," it said, adding that the high court, surprisingly, carved out a non-existing category of romantic cases in rape cases.

The bench found fault with the high court's observation that laid down duties and obligations of every female and adolescent, including an advice to control sexual urges.

"There are several statements and conclusions in the impugned judgment which, to say the least, are shocking. Perversity is writ large on the face of the judgment, which can be seen in several paragraphs of the impugned judgment," it said.

The high court acquitted the man on October 18, 2023, saying it was a case of "non-exploitative consensual sexual relationship between two consenting adolescents, though consent in view of the age of the victim is immaterial".