Holding

The Supreme Court restored the conviction under Section 6 of the POCSO Act and Sections 376(2)(n) and 376(3) of the IPC, held that the High Court erred in quashing the conviction and in its observations, and affirmed the acquittal on Sections 363 and 366 of the IPC.

Summary

The Supreme Court examined a criminal appeal filed by the State of West Bengal against a High Court order that set aside the conviction of a 25‑year‑old accused under Section 6 of the POCSO Act and Sections 376(2)(n) and 376(3) of the IPC for raping a 14‑year‑old girl who later gave birth to his child. The Court held that the evidence proved aggravated penetrative sexual assault and rape, and that the High Court erred in quashing the conviction on the basis of a purported consensual relationship and settlement. It clarified the essential contents of a judgment in appeal against conviction and ruled that offences under the POCSO Act cannot be characterised as a "romantic relationship". The Court also affirmed that the High Court cannot use its plenary powers to quash serious offences like rape, even if the parties claim settlement. It directed the State to implement the provisions of Section 19(6) of the POCSO Act and the Juvenile Justice Act for the victim’s care and rehabilitation, and ordered the formation of an expert committee to assist the victim. The appeal was partly allowed, restoring the conviction for the POCSO and IPC offences while confirming acquittal on kidnapping charges.

Issues considered

When a Court deals with an appeal against an order of conviction, what essentials must a judgment contain?
What was the High Court's duty in ascertaining offences under Section 6 of the POCSO Act and Section 376 of the IPC, and can such offences be described as a "romantic relationship"?
Can the High Court exercise plenary powers to quash a conviction on the grounds of settlement or consent in serious offences?
Was the State obligated to take care of a 14‑year‑old victim of a POCSO offence?
How should the provisions of Section 19(6) of the POCSO Act and the Juvenile Justice (Care and Protection of Children) Act, 2015 be implemented?
What is the importance of rehabilitation for victims of offences under the POCSO Act?

Legislation cited

Code of Criminal Procedure, 1973s. 482
Constitution of Indias. Article 21, s. Article 226
Indian Penal Code, 1860s. 363, s. 366, s. 375, s. 376(2)(n), s. 376(3)
Juvenile Justice (Care and Protection of Children) Act, 2015s. 27, s. 29, s. 30, s. 31, s. 36, s. 39, s. 46
Prohibition of Child Marriage Act, 2006s. 9
Protection of Children from Sexual Offences Act, 2012s. 19(6), s. 6

Subjects

Section 6 of Protection of Children from Sexual Offences Act, 2012Section 376(2)(n) of Penal Code, 1860Article 21 of the Constitution of IndiaMinorPenetrative sexual assault on minorLawful guardianEvidence of enticing the victimOut of the keeping of the lawful guardian of minorJudgmentEssentials of JudgmentObject of writing a judgmentJudge’s personal opinionsAdvisory jurisdictionRapeConsentRomantic relationshipSexual exploitation and sexual abuse of childrenKidnappingExercise of Plenary PowersQuashing of order of convictionQuashing the order of conviction on the grounds of settlement or by consentObligation of State under POCSOChild Welfare Committee under Juvenile Justice (Care and Protection of Children) Act, 2015CareProtectionTreatmentDevelopment and rehabilitation of children in need of care and protectionFinancial support to any child living in a child care institutionChild’s re-integration into mainstream societyInformed choice to victimFundamental right to liveDignified lifeWelfare measures

Judgment

[2024] 8 S.C.R. 575 : 2024 INSC 614

In Re: Right To Privacy of Adolescents
(Suo Motu Writ Petition (Civil) No. 3 of 2023)
20 August 2024
[Abhay S. Oka* and Ujjal Bhuyan, JJ.]

Issue for Consideration
(i) When a Court deals with an appeal against an order of conviction,
what are the essentials, which a judgment must contain; (ii) What
was the duty of the High Court while ascertaining the offences u/s.6
of the Protection of Children from Sexual Offences Act, 2012 &
Section 376 of the IPC and Can an act that is an offence punishable
under the POSCO Act be described as “a romantic relationship”;
(iii) Whether the High Court can exercise the plenary powers to
quash the order of conviction on the grounds of settlement or by
consent; (iv) Whether the State was under an obligation to take
care of the victim of an offence under the POCSO Act, who was
fourteen years old; (v) Implementation of the provisions of section
19(6) of the Protection of Children from Sexual Offences Act, 2012
and the provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2015; (vi) Importance of rehabilitation of the victims
of offences under the POCSO Act.

Headnotes†
Protection of Children from Sexual Offences Act, 2012 – s.6 –
Penal Code, 1860 – s.376(2)(n) – Conviction under – The
accused, twenty-five years old, enticed victim, fourteen year
old, to leave her house – A female child was born to the
victim – Admittedly, the accused is the biological father of the
child – The Special Judge appointed under the POCSO Act,
convicted the accused for the offences punishable u/s. 6 of
the POCSO Act and under s.363, s.366, under clause (n) of
sub-section (2) and sub-section (3) of s.376 of the IPC – By
the impugned judgment, the High Court held that the offences
punishable u/s. 363 and s.366 of the IPC were not made out, and
also set aside the conviction of the accused for the offences
punishable u/s. 6 of the POCSO Act and sub-sections 2(n)
and (3) of s.376 of the IPC – Correctness:
Held: In this case, there is no dispute about the fact that the accused
committed penetrative sexual assault on the victim – As the victim
became pregnant as a consequence of the sexual assault, in view

* Author
576 [2024] 8 S.C.R.

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of sub-clause (ii) of clause (j) of Section 5 of the POCSO Act, it
became a case of aggravated penetrative sexual assault – On facts,
there cannot be any dispute that the commission of the offence
punishable under Section 6 of the POCSO Act by the accused was
duly proved – Under Section 375 of the IPC, having penetrative
intercourse with a victim who is under 18 years of age with or
without her consent becomes an offence of rape – As the offence
was repeatedly committed on the victim, clause (n) of sub-section
(2) of Section 376 of the IPC is attracted – Therefore, the accused
was liable to be punished in accordance with Section 376(2)(n) of
the IPC – As far as offences u/ss.363, 366 are concerned, in the
instant case, there is no evidence to prove that the accused took the
victim out of the keeping of the lawful guardian – Similarly, there is no
evidence of enticing the victim – The mother of the victim deposed
that the victim left her house on her own – That is also the version
of the victim – Hence, the prosecution did not establish kidnapping –
The offences punishable under Sections 363 and 366 of the IPC
are not made out – The findings and observations in the impugned
judgment of the High Court, except the finding on the applicability of
Sections 363 and 366 of the IPC, cannot be sustained – Thus, the
impugned judgment of the High Court is set aside and the judgment
of the Special Court is restored to the extent of the conviction of
the accused for the offences punishable under sub-sections (2)(n)
and (3) of Section 376 of the IPC and Section 6 of the POCSO
Act – Accordingly, the accused stands convicted – The acquittal of
the accused for the offences punishable under Sections 363 and
366 of the IPC is confirmed. [Paras 10, 11, 12, 44(a)]
Judgment – When a Court deals with an appeal against an
order of conviction, what are the essentials, which a judgment
must contain:
Held: When a Court deals with an appeal against an order of
conviction, the judgment must contain (i) a concise statement of
the facts of the case, (ii) the nature of the evidence adduced by
the prosecution and the defence, if any, (iii) the submissions made
by the parties, (iv) the analysis based on the re-appreciation of
evidence, and (v) the reasons for either confirming the guilt of
the accused or for acquitting the accused – The appellate court
must scan through the evidence, both oral and documentary, and
re-appreciate it – After re-appreciating the evidence, the appellate
court must record reasons for either accepting the evidence of the
prosecution or for disbelieving the evidence of the prosecution –
[2024] 8 S.C.R. 577

In Re: Right To Privacy of Adolescents

The Court must record reasons for deciding whether the charges
against the accused have been proved – In a given case, if the
conviction is confirmed, the Court will have to deal with the legality
and adequacy of the sentence – In such a case, there must be a
finding recorded on the legality and adequacy of the sentence with
reasons – The ultimate object of writing a judgment is to ensure
that the parties before the Court know why the case is decided in
their favour or against them – Therefore, judgment must be in a
simple language – The conclusions recorded by the Court in the
judgment on legal or factual issues must be supported by cogent
reasons. [Para 13]
Judgment – Judgment cannot contain the Judge’s personal
opinion – The judgment cannot contain irrelevant and
unnecessary material:
Held: The Court can always comment upon the conduct of the
parties – However, the findings regarding the conduct of the parties
must be confined only to such conduct which has a bearing on
the decision-making – A judgment of the Court cannot contain the
Judge’s personal opinions on various subjects – Similarly, advisory
jurisdiction cannot be exercised by the Court by incorporating advice
to the parties or advice in general – The Judge has to decide a
case and not preach – The judgment cannot contain irrelevant and
unnecessary material – A judgment must be in simple language
and should not be verbose. [Para 14]
Protection of Children from Sexual Offences Act, 2012 – s.6 –
Penal Code, 1860 – s.376 – What was the duty of the High
Court while ascertaining the offences u/s.6 of the POCSO
Act and s.376 of the IPC and Can an act that is an offence
punishable under the POSCO Act be described as “a romantic
relationship”:
Held: The duty of the High Court was to ascertain on the evidence
whether the offences u/s.6 of the POCSO Act and s.376 of the
IPC were made out – In view of “sixthly” in Section 375 of the IPC,
penetrative intercourse with a woman under eighteen years of
age, with or without her consent, constitutes an offence of rape –
Therefore, whether such offence arises from a romantic relationship
is irrelevant – An act that is an offence punishable under the
POSCO Act cannot be described as “a romantic relationship” –
The Courts must follow and implement the law – The Courts
cannot commit violence against the law. [Para 19]
578 [2024] 8 S.C.R.

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Protection of Children from Sexual Offences Act, 2012 – Penal
Code, 1860 – Exercise of Plenary Powers to quash the order
of conviction:
Held: On a plain reading of “sixthly” in Section 375 r/w. Section
376(2)(n) of the IPC, notwithstanding the consensual sexual
relationship, the offence punishable under clause (n) of sub-
section (2) of Section 376 of the IPC, was made out in the instant
case – One of the objectives of the POSCO Act is to effectively
address sexual exploitation and sexual abuse of children, as both
offences are very heinous – In the facts of the case, the accused
was not an adolescent, but his age was about twenty-five years
on the date of the commission of the offence, and the victim
was only fourteen years old – When such offences of rape and
aggravated penetrative sexual assault are committed, by exercising
its jurisdiction u/Art. 226 of the Constitution of India and/or s.482
of the Cr.PC, the High Court cannot acquit an accused whose
guilt has been proved – In the instant case, the High Court was
influenced by the fact that the victim’s parents did not support her,
and therefore, by sending the accused to jail, she and her child
would be miserable as the accused and his family were taking care
of them – There are various decisions of this Court holding that
the High Court can exercise jurisdiction u/s. 482 of the Cr.PC to
quash a prosecution on the grounds of settlement or by consent –
However, in respect of serious offences like murder, rape, dacoity,
etc., or other offences of mental depravity under IPC or offences
of moral turpitude under special statutes, like the Prevention of
Corruption Act or the offences committed by public servants while
working in that capacity, the settlement between the offender and
the victim can have no legal sanction at all – Therefore, in view
of the settled position of law, in the facts of the case, even if the
accused and the victim (who has now attained majority) were to
come out with a settlement, the High Court could not have quashed
the prosecution. [Paras 21, 22, 23, 23.1]
Protection of Children from Sexual Offences Act, 2012 –
s.19(6) – Juvenile Justice (Care and Protection of Children)
Act, 2015 – s.27, s.2(14) – Whether the State was under an
obligation to take care of the victim of an offence under the
POCSO Act, who was fourteen years old:
Held: Under sub-section (6) of Section 19, it was the duty of the
police to report the matter to the Child Welfare Committee (CWC)
[2024] 8 S.C.R. 579

In Re: Right To Privacy of Adolescents

and the Special Court within a period of twenty-four hours from
the time the police had the knowledge about the commission
of the offence – In the instant case, there is nothing placed on
record which shows that compliance was made by reporting the
case to CWC – Section 27 of the JJ Act provides for setting up
the CWC – The authority of the CWC is to dispose of the cases
for care, protection, treatment, development and rehabilitation of
children in need of care and protection, as well as to provide for
their basic needs and protection – The authority conferred on
the CWC creates a corresponding obligation – Even a child who
has a parent or guardian and if such parent or guardian is found
to be unfit to take care of the child, in such a case, the child is
covered by the definition under sub-section (14) of s.2 of the JJ
Act – Therefore, the CWC has to exercise the power to provide
basic needs and protection to such children in need of care and
protection – The JJ Act is a complete code that makes provisions
for the care, protection, treatment, and development of children
in need of care and protection – The JJ Act provides for making
available their basic needs and protection – The Act takes care of
all the needs of the victims under the POCSO Act who fall under
the category of children in need of care and protection – The object
is to undertake the rehabilitation and social re-integration process
of such victims based on individual care plans as provided u/s. 39
of the JJ Act – Section 46 is a provision that requires the State
Governments to frame rules to provide financial support to any
child living in a child care institution upon completion of 18 years
of age – The financial support has to be very exhaustive as the
object of financial support is to facilitate a child’s re-integration
into mainstream society – In the instant case, these statutory
provisions were overlooked entirely, a situation was created
which did not allow the victim to make an informed choice about
her future – She did not get that opportunity even after attaining
majority. [Paras 27.1, 28, 28.1, 28.2, 34]
Constitution of India – Art. 21 – Juvenile Justice (Care and
Protection of Children) Act, 2015 – Protection of Children from
Sexual Offences Act, 2012 – Importance of rehabilitation of
the victims of offences under the POCSO Act – Compliance
and implementation of 19(6) of POCSO:
Held: It is the responsibility of the State to take care of helpless
victims – The right to live a dignified life is an integral part of the
fundamental right guaranteed under Article 21 of the Constitution
580 [2024] 8 S.C.R.

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of India – Article 21 encompasses the right to lead a healthy
life – The minor child, who is the victim of the offences under the
POCSO Act, is also deprived of the fundamental right to live a
dignified and healthy life – The same is the case of the child born
to the victim as a result of the offence – All the provisions of the
JJ Act regarding taking care of such children and rehabilitating
them are consistent with Article 21 of the Constitution of India –
Therefore, immediately after the knowledge of the commission of
a heinous offence under the POCSO Act, the State, its agencies
and instrumentalities must step in and render all possible aid to the
victim children, which will enable them to lead a dignified life – The
failure to do so will amount to a violation of the fundamental rights
guaranteed to the victim children under Article 21 – The police must
strictly implement sub-section (6) of Section 19 of the POCSO
Act – If that is not done, the victim children are deprived of the
benefits of the welfare measures under the JJ Act – Compliance
with Section 19(6) is of vital importance – Non-compliance thereof
will lead to a violation of Article 21. [Para 37]
Protection of Children from Sexual Offences Act, 2012 –
Juvenile Justice (Care and Protection of Children) Act, 2015 –
Formation of expert committee – Directions issued:
Held: Directions issued to the State to form a expert committee –
The State Government to provide all the material particulars/details
of the benefits which it is willing to extend to the victim – Thereafter,
the committee shall meet the victim of the offences 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 coordinator
of the committee shall submit a report in a sealed cover to this
Court. [Paras 44(b)(d)(e)(h)]
Protection of Children from Sexual Offences Act, 2012 –
Juvenile Justice (Care and Protection of Children) Act, 2015 –
Implementation of – Directions issued:
Held: The Registry of the Supreme Court directed to forward
copies of this judgment to the Secretaries of Law and/or Justice
Departments of all the States and Union Territories – The
Secretaries to convene meetings of the Secretaries of the concerned
[2024] 8 S.C.R. 581

In Re: Right To Privacy of Adolescents

departments and other senior officials – The object of holding such
meetings is to ensure that appropriate directions are issued to all
concerned to strictly implement the provisions of Section 19(6) of the
POCSO Act and the relevant provisions of the JJ Act. [Para 44(i)]

Case Law Cited
Gian Singh v. State of Punjab & Anr. [2012] 8 SCR 753 : (2012)
10 SCC 303 – relied on.

List of Acts
Protection of Children from Sexual Offences Act, 2012; Juvenile
Justice (Care and Protection of Children) Act, 2015; Constitution
of India; Penal Code, 1860.

List of Keywords
Section 6 of Protection of Children from Sexual Offences Act,
2012; Section 376(2)(n) of Penal Code, 1860; Article 21 of the
Constitution of India; Minor; Penetrative sexual assault on minor;
Lawful guardian; Evidence of enticing the victim; Out of the
keeping of the lawful guardian of minor; Judgment; Essentials of
Judgment; Object of writing a judgment; Judge’s personal opinions;
Advisory jurisdiction; Rape; Consent; Romantic relationship;
Sexual exploitation and sexual abuse of children; Kidnapping;
Exercise of Plenary Powers; Quashing of order of conviction;
Quashing the order of conviction on the grounds of settlement
or by consent; Obligation of State under POCSO; Child Welfare
Committee under Juvenile Justice (Care and Protection of
Children) Act, 2015; Care; Protection; Treatment; Development
and rehabilitation of children in need of care and protection;
Financial support to any child living in a child care institution;
Child’s re-integration into mainstream society; Informed choice to
victim; Fundamental right to live; Dignified life; Welfare measures.

Case Arising From
ORIGINAL/APPELLATE JURISDICTION: Suo Motu Writ Petition (C)
No. 3 of 2023
(Under Article 32 of The Constitution of India)
With
Criminal Appeal No.1451 of 2024
582 [2024] 8 S.C.R.

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Appearances for Parties
Ms. Madhavi Divan, Ms. Liz Mathew, Sr. Advs., (Amicus Curiae),
Huzefa Ahmadi, Sr. Adv., Ms. Nidhi Khanna, Sameer Choudhary, Ms.
Aishani Narain, Ms. Aandrita Deb, Subham Saigal, Ms. Bagavathy
Vennimalai, Ms. Mallika Agarwal, Ms. Astha Sharma, Sanjeev
Kaushik, Shreyas Awasthi, Ms. Rashmi Singh, Ms. Lihzu Shiney
Konyak, Dibyadyuti Banerjee, Ms. Sumedha Halder, Ms. Sunita
Kumari, Abhijit Sengupta, Advs. for the appearing parties.
Judgment / Order of the Supreme Court

Judgment
Abhay S. Oka, J.
FACTUAL ASPECTS
1. Criminal Appeal no.1451 of 2024 has been preferred by the State of
West Bengal, aggrieved by the judgment and order dated 18th October
2023, passed by a Division Bench of the High Court of Judicature at
Calcutta. The learned Special Judge appointed under the Protection
of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO
Act’), Baruipur, South 24 Parganas, 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 short, ‘the IPC’).
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/-. He was sentenced to rigorous
imprisonment for four and five years, respectively, for the offences
punishable under Sections 363 and 366 of the IPC. Though the
learned Special Judge under the POCSO Act concluded 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.
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
[2024] 8 S.C.R. 583

In Re: Right To Privacy of Adolescents

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.
3. By the impugned judgment, the High Court held that the offences
punishable under Sections 363 and 366 of the IPC were not made
out, and therefore, the High Court acquitted the accused for the
said two offences. Considering the factual scenario that the High
Court noticed, it purported to exercise its jurisdiction under Article
226 of the Constitution of India read with Section 482 of the Code
of Criminal Procedure, 1973 (for short, ‘the Cr. PC’) to set aside the
conviction of the accused for the offences punishable under Section
6 of the POCSO Act and sub-sections 2(n) and (3) of Section 376
of the IPC. 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.
4. The Suo Motu writ petition was initiated based on the directions issued
by the Hon’ble Chief Justice of India for challenging the impugned
judgment. The State Government has preferred the criminal appeal
to challenge the order of acquittal.
5. Considering the nature of the observations made by the High Court
and the findings recorded by it, this Court appointed Ms. Madhavi
Divan and Ms. Liz Mathew, the learned senior counsel, as amicus
curiae to assist the Court. Both of them have rendered valuable
assistance to the Court. Along with them, Ms. Nidhi Khanna,
Advocate-on-Record, has also assisted the Court. We have heard
Mr.Huzefa Ahmadi, the learned senior counsel appearing for the
State Government and the learned counsel representing the accused
584 [2024] 8 S.C.R.

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and the victim. The learned senior counsel for the State Government
has taken a fair stand. The accused and the victim are on the same
page and want to continue their cohabitation.
ANALYSIS OF EVIDENCE
6. We have perused the evidence of the prosecution witnesses and
the statement of the accused under Section 313 of the Cr. PC. From
the statement and the evidence on record, it becomes an admitted
position that the age of the victim on the date of the incident was
fourteen years, and the age of the accused was about twenty-five
years. When the statement of the accused was recorded, the age of
the victim’s daughter was about ten months. Though it is the case
of the prosecution that the marriage between the accused and the
victim was solemnised on 20th May 2018 in a temple, there is no
evidence adduced by the prosecution on this aspect.
7. The evidence of the victim reveals that she also claimed that she
married the accused. She stated that her daughter was ten months
old. She stated in the cross-examination that she left her house of
her own will and married the accused. She stated that since the
year 2019, she has been residing in the house of the accused. She
stated in the cross-examination that she would like to stay in the
house of the accused.
8. The first informant, the victim’s mother, deposed that on 20th May
2018, the victim was fourteen years and three months old. She
produced the victim’s birth certificate in the evidence. She stated that
her daughter was kept in Narendrapur Sanlaap home, from where
she was brought to her house. After staying in the house for a few
months, she again went to the house of the accused.
9. We are not referring to the medical evidence as it is an admitted
position that the accused kept physical relations with the victim,
and the victim has given birth to a female child. There is no dispute
that the accused is the biological father of the child. There is no
explanation for the gross delay in investigation and the delay in
arresting the accused. As stated earlier, the accused was arrested
on 19th December 2021. Later on, he was enlarged on bail.
GUILT OF THE ACCUSED
10. Section 6 of the POCSO Act reads thus:
[2024] 8 S.C.R. 585

In Re: Right To Privacy of Adolescents

“6. Punishment for aggravated penetrative sexual
assault.— Whoever, commits aggravated penetrative
sexual assault, shall be punished with rigorous imprisonment
for a term which shall not be less than ten years but which
may extend to imprisonment for life and shall also be
liable to fine.”
‘Penetrative sexual assault’ is defined under Section 3 of the POCSO
Act. In this case, there is no dispute about the fact that the accused
committed penetrative sexual assault on the victim. As the victim
became pregnant as a consequence of the sexual assault, in view
of sub-clause (ii) of clause (j) of Section 5 of the POCSO Act, it
became a case of aggravated penetrative sexual assault. On facts,
there cannot be any dispute that the commission of the offence
punishable under Section 6 of the POCSO Act by the accused was
duly proved.
11. Under Section 375 of the IPC, having penetrative intercourse with
a victim who is under 18 years of age with or without her consent
becomes an offence of rape. As the offence was repeatedly committed
on the victim, clause (n) of sub-section (2) of Section 376 of the
IPC is attracted. Therefore, the accused was liable to be punished
in accordance with Section 376(2)(n) of the IPC. Sub-section (3) of
Section 376 provides for a minimum punishment of twenty years for
the offence of rape when the victim is less than sixteen years of age.
12. Section 361 of the IPC defines “Kidnapping from lawful guardianship”.
The said provision reads thus:
“361. Kidnapping from lawful guardianship.—Whoever
takes or entices any minor under sixteen years of age if a
male, or under eighteen years of age if a female, or any
person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind, without
the consent of such guardian, is said to kidnap such minor
or person from lawful guardianship.”
In the facts of the case, there is no evidence to prove that the accused
took the victim out of the keeping of the lawful guardian. Similarly,
there is no evidence of enticing the victim. The mother of the victim
deposed that the victim left her house on her own. That is also
the version of the victim. Hence, the prosecution did not establish
kidnapping. Therefore, the offences punishable under Sections 363
586 [2024] 8 S.C.R.

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and 366 of the IPC are not made out. But, there is no doubt that the
offences punishable under Section 6 of the POCSO Act and Sub-
sections (2)(n) and (3) of Section 376 of the IPC were made out.
JUDGMENT
13. When a Court deals with an appeal against an order of conviction,
the judgment must contain (i) a concise statement of the facts of the
case, (ii) the nature of the evidence adduced by the prosecution and
the defence, if any, (iii) the submissions made by the parties, (iv) the
analysis based on the reappreciation of evidence, and (v) the reasons
for either confirming the guilt of the accused or for acquitting the
accused. The appellate court must scan through the evidence, both
oral and documentary, and reappreciate it. After reappreciating the
evidence, the appellate court must record reasons for either accepting
the evidence of the prosecution or for disbelieving the evidence of
the prosecution. The Court must record reasons for deciding whether
the charges against the accused have been proved. In a given case,
if the conviction is confirmed, the Court will have to deal with the
legality and adequacy of the sentence. In such a case, there must
be a finding recorded on the legality and adequacy of the sentence
with reasons. The ultimate object of writing a judgment is to ensure
that the parties before the Court know why the case is decided in
their favour or against them. Therefore, judgment must be in a simple
language. The conclusions recorded by the Court in the judgment
on legal or factual issues must be supported by cogent reasons.
14. No doubt, the Court can always comment upon the conduct of the
parties. However, the findings regarding the conduct of the parties
must be confined only to such conduct which has a bearing on the
decision-making. A judgment of the Court cannot contain the Judge’s
personal opinions on various subjects. Similarly, advisory jurisdiction
cannot be exercised by the Court by incorporating advice to the
parties or advice in general. The Judge has to decide a case and
not preach. The judgment cannot contain irrelevant and unnecessary
material. A judgment must be in simple language and should not
be verbose. Brevity is the hallmark of quality judgment. We must
remember that judgment is neither a thesis nor a piece of literature.
However, we find that the impugned judgment contains personal
opinion of the Judges advice to the younger generation and advice
to the legislature.
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OBJECTIONABLE PORTIONS OF THE IMPUGNED JUDGMENT
15. Ms Madhavi Divan, the learned senior counsel appointed as amicus
curiae, has culled out the portions of the impugned judgment which,
according to her, are highly objectionable. We are reproducing the
same:
i. “We feel it prudent to mention here that we noticed
a rustic lady with a rumpled saree and unkempt hair,
looking more aged than her age standing in a corner
of the Court with a baby in her arms.” (Para 2)
ii. “[…]Non-exploitative sexual relationship without
any intent is in rise among adolescents in our
country. We may only say that may be for the reason
of climatic change, change in food habits etc. girls
are attaining puberty now-a-days in a younger age
and sexuality develop in them very early may be
owing to peer pressure, influence by social media,
free availability of porn materials and free mixing with
friends of opposite sex in a taboo free atmosphere.
This being, however, sociological study by experts,
we do not want to comment on these aspects. To
top it all we do not want to go to the pathology of
the offence(s) statutorily outlined in the POCSO Act.”
(Para 13)
iii. “The discussion so far stresses on a “Rights
based approach” so far as adolescents are
concerned. We may sound narrow in our view,
but the practicality of the facts is that a “Rights
based approach” as a panacea for all the problems
that come is not the solution, and in our view, not
the just and correct approach. For conferring the
Rights suggested in the aforesaid discussion on
the “captioned group” i.e. adolescents between
the age fold of 16 to 18 in “romantic relationship”,
some test are to be satisfied first. Those are:
i) Whether conferment of suggested Rights
on the “captioned group” is/are in their
best interest?
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ii) Whether the captioned group has the
discretion and maturity to use that Rights
for their best interest?
iii) Whether such rights at such age is
conducive for over all development of their
personality or it is destructive of their self
development?
iv) Who are the persons on whom such Rights
are to be conferred, are they disciplined
adolescents or a wayward lot, who have
no control on their trivial urge to have sex?
v) Whether conferment of such Rights on the
captioned group is in the best interest of
the society?” (para 29)
iv. “To find answers to these tests opinions of some
individuals, Rights activists, or view of so called
liberals are not at all sufficient. [...]” (Para 29.1)
v. “Fundamental Rights in the Constitution and various
other Rights in different statutes have been given
to individuals for a balance in society, to check
arbitrariness of the Government and development
of best self of an individual. If we go deep into our
old texts, we find that Rights are not conferred
but they are earned by action of an individual. If
we look at Bentham’s theory, it is found that every
right has corresponding duty/duties or obligation/
obligations. By performing the obligation, you have
to earn the Right/Rights. It is somewhat similar to
the old oriental philosophy “Do your duty and earn
your Right.” (para 30)
vi. “The principal androgenic steroid is testosterone,
which is secreted primarily from the testes in men
and ovaries in women and in small amounts from
the adrenal glands, both in men and women.
Hypothalamus and pituitary gland control the amount
of testosterone, which is primarily responsible for
sex urge and libido (in men). It’s existence is there
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in the body, so when the respective gland becomes
active by stimulation, sexual urge is aroused. But
activation of the respective responsible gland is
not automatic. It needs stimulation by our sights,
hearing, reading erotic materials and conversation
with opposite sex. So sexual urge is created by
our own action. Sex in adolescents is normal but
sexual urge or arousal of such urge is dependent
on some action by the individual, may be a man
or woman. Therefore, sexual urge is not at all normal
and normative. If we stop some actions), arousal of
sexual urge, as advocated in our discussion supra,
ceases to be normal.” (Para 30.1)
vii. “Ask any parents of an adolescent, may be a boy or
girl, you shall get the answer how difficult it is to give
a right upbringing to him/her in view of free flow of
negative materials from the web and social media,
which hamper their thinking process and living. We,
therefore, propose to take a “Duty/obligation
based approach” to the issue in hand.” (Para 30.2)
viii. “It is the duty/obligation of every female adolescent to:
(i) Protect her right to integrity of her body.
(ii) Protect her dignity and self-worth.
(iii) Thrive for overall development of her self
transcending gender barriers.
(iv) Control sexual urge/urges as in the eyes
of the society she is the looser (sic) when
she gives in to enjoy the sexual pleasure of
hardly two minutes.
(v) Protect her right to autonomy of her body and
her privacy.
It is the duty of a male adolescent to respect the
aforesaid duties of a young girl or woman and he
should train his mind to a respect a woman, her self
worth, her dignity & privacy, and right to autonomy
of her body.” (Para 30.3)
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ix. “[...] Similarly, parental guidance and education so far
as boys are concerned is to include how to respect
a woman; how to keep dignity of a woman; how to
protect the integrity of body of a woman; and how to
befriend a woman without being aroused by sexual
urge even if there is advances from the other side
till he becomes capable to maintain a family. [.].”
(Para 31)
x. “We do not want our adolescents to do anything that
shall push them from dark to darker side of life. It is
normal for each adolescent to seek the company
of opposite sex but it is not normal for them to
engage in sex devoid of any commitment and
dedication. We want them to spread their wings
high with a view to realise their best selves. Sex
shall come automatically to them when they
grow self-reliant, economically independent
and a person which they dreamt one day to be.
Along with sex in such a stage shall come love with
commitment and dedication towards each other
as they shall have the discretion and maturity to
understand each other, adjust with each other and
forgive each other. We beseech our adolescents
to follow a salutary legal principle of Mahabharata
“Dharmo Rakshyati Rakshyita” (one who protects
law is protected by law) and proceed in their path of
self-development without being influenced by bashful
urge of urgent sex.” (Para 32)
xi. “So far as the case of criminalisation of romantic
relationship between two adolescents of opposite
sex is concerned it should better be left to the
wisdom of the judiciary. Each judiciary in the world
has the nicety of pluralism. Each individual judge has
his/her own opinion. He/She has his/her own unique
style of addressing an issue. [..] We are, therefore, of
the view that the grey area of adolescent consensual
sex about which much commotion is made should
be left to the discretion and wisdom of the judiciary.
It is also found from decisions of different Hon’ble
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High Courts that such matters have been dealt with
in proper perspective taking into consideration the
peculiarity of case placed before the court” (Para 33)
xii. “Coming to the present case we find that this
is a case of non-exploitative consensual sexual
relationship between a minor girl and an older
adolescent or may be a young adult. [...]” (Para 38)
xiii. “In the present case things are even on better footing.
The girl was 14+ when the occurrence happened. The
boy was also an old adolescent or a young adult at
that time. [.]” (Para 39)”
(emphasis added)
15.1 We need not waste pages dealing with every observation/
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.
REASONS RECORDED BY THE HIGH COURT FOR ACQUITTAL
16. Now, we come to the reasons recorded by the Division Bench. The
Division Bench has invited a very peculiar concept of “non-exploitative
sexual acts” while dealing with the offences punishable under Section
376(2)(n) of the IPC and Section 6 of the POCSO Act. We fail to
understand how a sexual act, which is a heinous offence, can be
termed as non-exploitative. When a girl who is fourteen years old
is subjected to such a horrific act, how can it be termed as “non-
exploitative”? In paragraph 17, the High Court refers to “marital
rape”. In this case, there is no evidence of marriage. The Bench
has also invented a non-existent category of “older adolescents” and
lamented about the lack of recognition of the consensual behaviour
of older adolescents. We fail to understand this concept of “older
adolescents”. Further, the Division Bench goes on to observe that
sexual behaviour in adolescents, particularly from the onset of puberty,
is established as being a natural, normative and integral part of an
adolescent’s development.
17. We must deal with some of the observations made by the High
Court. The High Court concluded that by equating consensual and
non-exploitative sexual acts with rape and aggravated penetrative
sexual assault, the law undermines the bodily integrity and dignity
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of adolescents. The High Court was not called upon to discuss the
merits and demerits of the existing laws. What is shocking is the
observation made in paragraph 23 of the impugned judgment where
the High Court observed that while achieving ostensible objectives
to protect all children below 18 years from sexual exploitation, the
law’s unintended effect has been the deprivation of liberty of young
people in consensual relationship. The Court, surprisingly, carved out
a non-existing category of romantic cases in the rape cases. While
dealing with the offences under the POCSO Act, shockingly, the
Court observed that the law undermines the identity of adolescent
girls by casting them as victims, thereby rendering them voiceless.
The Court says that, on the other hand, adult boys are discriminately
treated as children in conflict with the law. Thereafter, in paragraph
25, the Court proceeded to criticise the POCSO Act by observing
that it clubs all persons below eighteen years without considering
their developing sexuality, evolving capacity and the impact of such
criminalisation on their best interests. In paragraph 28, the Court went
further. It held that instead of protecting the adolescents from abuse,
the law exposes them in factually consensual and non-exploitative
relationships to the risk of criminal prosecution. It compromises the
mandate of protecting the children. Therefore, the Court observes
that an amendment is necessary to decriminalise consensual sexual
acts involving adolescents above sixteen years. The High Court,
while dealing with an appeal against the order of conviction, was
not called upon to make the observations which we have referred to
above. Perhaps these were the subjects on which only the experts
could have debated at a different forum. The judges ought to have
avoided expressing their personal views even assuming that there
was some justification for holding the views. While the High Court
observed this, it forgot that in the facts of the case, the Court was
not dealing with the sexual acts involving adolescents above sixteen
years, as the age of the victim was fourteen years and the accused
was twenty-five years at the relevant time.
18. In paragraph 29, the Court went into the question of rights based
approach, which was completely unwarranted. In paragraph 30.1, the
Court referred to the generation of androgenic steroids and secretion
from the pituitary gland. Thereafter, the Court laid down the duties
and obligations of every female and adolescent in paragraph 30.3,
which we have quoted above. No reasons are required to be recorded
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for holding that incorporation of the same in the judgment is entirely
irrelevant and unwarranted. After that, the Court proceeded to lay
emphasis on incorporating the aspects of reproductive health and
hygiene into the school curriculum. 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.
19. The duty of the High Court was to ascertain on the evidence whether
the offences under Section 6 of the POCSO Act and Section 376
of the IPC were made out. In view of “sixthly” in Section 375 of the
IPC, penetrative intercourse with a woman under eighteen years
of age, with or without her consent, constitutes an offence of rape.
Therefore, whether such offence arises from a romantic relationship
is irrelevant. How can an act that is an offence punishable under
the POSCO Act be described as “a romantic relationship”? 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 findings and observations in the impugned
judgment, except the finding on the applicability of Sections 363 and
366 of the IPC, cannot be sustained.
EXERCISE OF PLENARY POWERS TO QUASH THE ORDER OF
CONVICTION
20. Now, coming to the conviction of the offences punishable under
Section 6 of the POCSO Act and Section 376(2)(n) of the IPC,
the Division Bench proceeds on the footing that the said offences
have been established. However, the Court purported to exercise
its “plenary powers” under Section 482 of the Cr.PC coupled with
Article 226 of the Constitution of India to set aside the conviction of
the accused. In short, as we can see from the last few paragraphs
of the impugned judgment, the High Court was swayed away by the
following aspects:
(a) There was a “non-exploitative” consensual sexual relationship
between the two consenting adolescents;
(b) The ground reality was that after the birth of the child, the
accused is taking care of the victim and the infant/small child;
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(c) The victim has no support from her parents, and
(d) A humane view is required to be taken to do complete justice.
21. On a plain reading of “sixthly” in Section 375 read with Section 376(2)
(n) of the IPC, notwithstanding the consensual sexual relationship,
the offence punishable under clause (n) of sub-section (2) of Section
376 of the IPC, was made out. One of the objectives of the POSCO
Act is to effectively address sexual exploitation and sexual abuse
of children, as both offences are very heinous. To give effect to the
United Nations Convention on the Rights of Children ratified by
India on 11th December 1992, the POCSO Act has been enacted.
As noted earlier, in the facts of the case, the accused was not an
adolescent, but his age was about twenty-five years on the date of
the commission of the offence, and the victim was only fourteen years
old. When such offences of rape and aggravated penetrative sexual
assault are committed, by exercising its jurisdiction under Article
226 of the Constitution of India and/or Section 482 of the Cr.PC, the
High Court cannot acquit an accused whose guilt has been proved.
22. Perhaps the consideration of sympathy and the so-called welfare of
the victim and her child prevailed on the Judges of the High Court.
The Court was influenced by the fact that the victim’s parents did
not support her, and therefore, by sending the accused to jail, she
and her child would be miserable as the accused and his family
were taking care of them.
23. There are various decisions of this Court holding that the High Court
can exercise jurisdiction under Section 482 of the Cr.PC to quash a
prosecution on the grounds of settlement or by consent. One such
judgment is in the case of Gian Singh v. State of Punjab & Anr.1
Paragraph 58 of the said decision reads thus:
“58. Where the High Court quashes a criminal proceeding
having regard to the fact that the dispute between the
offender and the victim has been settled although the
offences are not compoundable, it does so as in its opinion,
continuation of criminal proceedings will be an exercise in
futility and justice in the case demands that the dispute
between the parties is put to an end and peace is restored;

1 [2012] 8 SCR 753 : (2012) 10 SCC 303
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securing the ends of justice being the ultimate guiding
factor. No doubt, crimes are acts which have harmful effect
on the public and consist in wrongdoing that seriously
endangers and threatens the well-being of the society
and it is not safe to leave the crime-doer only because
he and the victim have settled the dispute amicably or
that the victim has been paid compensation, yet certain
crimes have been made compoundable in law, with or
without the permission of the court. In respect of serious
offences like murder, rape, dacoity, etc., or other
offences of mental depravity under IPC or offences
of moral turpitude under special statutes, like the
Prevention of Corruption Act or the offences committed
by public servants while working in that capacity, the
settlement between the offender and the victim can
have no legal sanction at all. However, certain offences
which overwhelmingly and predominantly bear civil flavour
having arisen out of civil, mercantile, commercial, financial,
partnership or such like transactions or the offences arising
out of matrimony, particularly relating to dowry, etc. or the
family dispute, where the wrong is basically to the victim
and the offender and the victim have settled all disputes
between them amicably, irrespective of the fact that such
offences have not been made compoundable, the High
Court may within the framework of its inherent power, quash
the criminal proceeding or criminal complaint or FIR if it
is satisfied that on the face of such settlement, there is
hardly any likelihood of the offender being convicted and
by not quashing the criminal proceedings, justice shall
be casualty and ends of justice shall be defeated. The
above list is illustrative and not exhaustive. Each case will
depend on its own facts and no hard-and-fast category
can be prescribed.”
(emphasis added)
23.1 Therefore, in view of the settled position of law, in the facts
of the case, even if the accused and the victim (who has now
attained majority) were to come out with a settlement, the High
Court could not have quashed the prosecution.
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HELPLESS POSITION OF THE VICTIM
24. The situation in which the victim was placed after the commission
of the offence needs a bit of elaboration. As noted earlier, the victim
left her house on 20th May 2018, and her mother filed a complaint
on 29th May 2018. On 1st June 2018, PW-5 (ASI Gopal Chandra
Saha) brought the victim from the house of the accused to the police
station. After her medical examination was conducted, she was sent
for safe custody at Alor Disha Child Line at Champahati. PW-2,
mother of the victim, without giving any particulars stated that she
got her daughter back from Narendrapur Sanlaap home. She claimed
in the cross-examination that the victim remained in her house for
one year and, later on, went back to the house of the accused. She
admitted that she never went to the home of the accused, not even
to see her grandchild. The victim’s parents completely abandoned
her, at least from the year 2019.
25. Ms Madhavi Divan, the learned amicus curiae, rightly emphasized
that no opportunity was made available to a girl of fourteen or fifteen
years of age to make an informed choice to decide whether to stay
with the accused. She did not get any support from her parents and
the State machinery when she required it the most. As held by us
hereafter, the State machinery failed to act according to the law to
take care of the victim. The situation in which she was placed at
that time was such that she had no opportunity to make an informed
choice about her future. She had no option but to seek shelter where
it was provided to her i.e. in the house of the accused. In any event,
it is doubtful whether she could have made an informed choice at
the age of fourteen or fifteen.
THE FAILURE OF THE STATE
26. The question before us is whether the State was under an obligation to
take care of the victim of an offence under the POCSO Act, who was
fourteen years old. Apart from the State’s constitutional obligations,
the statutes have enough provisions to address this situation. Though
the existing law of the land could have taken adequate care of the
poor victim in this case, the machinery created by the law failed.
These conclusions need more elaboration.
27. The first relevant statutory provision is Section 19 of the POCSO
Act. Section 19 of the POCSO Act reads thus:
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“19. Reporting of offences.— (1) Notwithstanding
anything contained in the Code of Criminal Procedure,
1973 (2 of 1974) any person (including the child), who
has apprehension that an offence under this Act is likely to
be committed or has knowledge that such an offence has
been committed, he shall provide such information to,—
(a) the Special Juvenile Police Unit; or
(b) the local police.
(2) Every report given under sub-section (1) shall be—
(a) ascribed an entry number and recorded in writing;
(b) be read over to the informant;
(c) shall be entered in a book to be kept by the
Police Unit.
(3) Where the report under sub-section (1) is given by a
child, the same shall be recorded under sub-section (2) in
a simple language so that the child understands contents
being recorded.
(4) In case contents are being recorded in the language
not understood by the child or wherever it is deemed
necessary, a translator or an interpreter, having such
qualifications, experience and on payment of such fees
as may be prescribed, shall be provided to the child if he
fails to understand the same.
(5) Where the Special Juvenile Police Unit or local police is
satisfied that the child against whom an offence has been
committed is in need of care and protection, then, it shall,
after recording the reasons in writing, make immediate
arrangement to give him such care and protection including
admitting the child into shelter home or to the nearest
hospital within twenty-four hours of the report, as may
be prescribed.
(6) The Special Juvenile Police Unit or local police
shall, without unnecessary delay but within a period
of twenty-four hours, report the matter to the Child
Welfare Committee and the Special Court or where
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no Special Court has been designated, to the Court
of Session, including need of the child for care and
protection and steps taken in this regard.
(7) No person shall incur any liability, whether civil or
criminal, for giving the information in good faith for the
purpose of sub-section (1).”
(emphasis added)
27.1 Thus, under sub-section (6) of Section 19, it was the duty of
the police to report the matter to the Child Welfare Committee
(for short, ‘CWC’) and the Special Court within a period of
twenty-four hours from the time the police had the knowledge
about the commission of the offence. There is nothing placed
on record which shows that compliance was made by reporting
the case to CWC.
28. Section 27 of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (for short, ‘the JJ Act’) provides for setting up the CWC.
The powers of the CWC have been laid down in Section 29 of the
JJ Act, which reads thus:
“29. Powers of Committee.— (1) The Committee shall
have the authority to dispose of cases for the care,
protection, treatment, development and rehabilitation
of children in need of care and protection, as well as
to provide for their basic needs and protection.
(2) Where a Committee has been constituted for any area,
such Committee shall, notwithstanding anything contained
in any other law for the time being in force, but save as
otherwise expressly provided in this Act, have the power to
deal exclusively with all proceedings under this Act relating
to children in need of care and protection.”
(emphasis added)
28.1 Thus, the authority of the CWC is to dispose of the cases for
care, protection, treatment, development and rehabilitation of
children in need of care and protection, as well as to provide
for their basic needs and protection. The authority conferred on
the CWC creates a corresponding obligation. A child in need
of care and protection has been defined under sub-section
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(14) of Section 2 of the JJ Act, which reads thus:
“2. Definitions:-
.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
(14) “child in need of care and protection” means a
child—
(i) who is found without any home or settled place
of abode and without any ostensible means of
subsistence; or
(ii) who is found working in contravention of labour
laws for the time being in force or is found begging,
or living on the street; or
(iii) who resides with a person (whether a guardian
of the child or not) and such person—
(a) has injured, exploited, abused or neglected
the child or has violated any other law for the
time being in force meant for the protection
of child; or
(b) has threatened to kill, injure, exploit or abuse
the child and there is a reasonable likelihood of
the threat being carried out; or
(c) has killed, abused, neglected or exploited
some other child or children and there is a
reasonable likelihood of the child in question
being killed, abused, exploited or neglected
by that person; or
(iv) who is mentally ill or mentally or physically
challenged or suffering from terminal or incurable
disease, having no one to support or look after or
having parents or guardians unfit to take care, if found
so by the Board or the Committee; or
(v) who has a parent or guardian and such parent
or guardian is found to be unfit or incapacitated,
by the Committee or the Board, to care for and
protect the safety and well-being of the child; or
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(vi) who does not have parents and no one is willing
to take care of, or whose parents have abandoned
or surrendered him; or
(vii) who is missing or run away child, or whose
parents cannot be found after making reasonable
inquiry in such manner as may be prescribed; or
(viii) who has been or is being or is likely to be abused,
tortured or exploited for the purpose of sexual abuse
or illegal acts; or
(ix) who is found vulnerable and is likely to be inducted
into drug abuse or trafficking; or
(x) who is being or is likely to be abused for
unconscionable gains; or
(xi) who is victim of or affected by any armed conflict,
civil unrest or natural calamity; or
(xii) who is at imminent risk of marriage before
attaining the age of marriage and whose parents,
family members, guardian and any other persons
are likely to be responsible for solemnisation of such
marriage;
(15) .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .. .. .. .. .. .. ..”
(emphasis added)
28.2 If a child is residing with a person who has injured, exploited
or abused the child or has violated any other law for the time
being in force meant for the protection of the child, the said
child becomes a child in need of care and protection. Thus,
if a child who is a victim of an offence under the POCSO Act
is residing with the accused, the child becomes a child in
need of care and protection. Even a child who has a parent
or guardian and if such parent or guardian is found to be unfit
to take care of the child, in such a case, the child is covered
by the definition under sub-section (14) of Section 2 of the JJ
Act. Therefore, the CWC has to exercise the power to provide
basic needs and protection to such children in need of care
and protection.
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29. Giving information of the commission of offence under the POCSO
Act, as required by Section 19(6) of the POCSO Act, is not an empty
formality. The CWC has to immediately step in and take action as
provided under Section 30 of the JJ Act, which reads thus:
“30. Functions and responsibilities of Committee.—
The functions and responsibilities of the Committee shall
include—
(i) taking cognizance of and receiving the children produced
before it;
(ii) conducting inquiry on all issues relating to and
affecting the safety and well-being of the children
under this Act;
(iii) directing the Child Welfare Officers or probation officers
or District Child Protection Unit or non-governmental
organisations to conduct social investigation and submit
a report before the Committee;
(iv) conducting inquiry for declaring fit persons for care of
children in need of care and protection;
(v) directing placement of a child in foster care;
(vi) ensuring care, protection, appropriate rehabilitation
or restoration of children in need of care and protection,
based on the child’s individual care plan and passing
necessary directions to parents or guardians or fit
persons or children’s homes or fit facility in this regard;
(vii) selecting registered institution for placement of
each child requiring institutional support, based on the
child’s age, gender, disability and needs and keeping
in mind the available capacity of the institution;
(viii) conducting at least two inspection visits per month
of residential facilities for children in need of care and
protection and recommending action for improvement in
quality of services to the District Child Protection Unit and
the State Government;
(ix) certifying the execution of the surrender deed by the
parents and ensuring that they are given time to reconsider
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their decision as well as making all efforts to keep the
family together;
(x) ensuring that all efforts are made for restoration of
abandoned or lost children to their families following due
process, as may be prescribed;
(xi) declaration of orphan, abandoned and surrendered
child as legally free for adoption after due inquiry;
(xii) taking suo motu cognizance of cases and reaching
out to children in need of care and protection, who
are not produced before the Committee, provided that
such decision is taken by at least three members;
(xiii) taking action for rehabilitation of sexually abused
children who are reported as children in need of care
and protection to the Committee by Special Juvenile
Police Unit or local police, as the case may be, under
the Protection of Children from Sexual Offences Act,
2012 (32 of 2012);
(xiv) dealing with cases referred by the Board under sub-
section (2) of section 17;
(xv) co-ordinate with the police, labour department and
other agencies involved in the care and protection of
children with support of the District Child Protection Unit
or the State Government;
(xvi) in case of a complaint of abuse of a child in any child
care institution, the Committee shall conduct an inquiry and
give directions to the police or the District Child Protection
Unit or labour department or childline services, as the case
may be; (xvii) accessing appropriate legal services for
children; (xviii) such other functions and responsibilities,
as may be prescribed.”
(emphasis added)
29.1 Under clause (vi) of Section 30, it is the duty of the CWC to
ensure care, protection, appropriate rehabilitation or restoration
of children in need of care and protection based on the child’s
individual care plan. The CWC cannot wait till the children in
need of care and protection are produced before it. Under
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clause (xii) of Section 30, the CWC must take suo motu
cognizance of the cases and reach out to the children in need
of care and protection. What is important here is clause (xiii)
of Section 30, which mandates that it is the duty of the CWC
to take action for the rehabilitation of sexually abused children
who are children in need of care and protection.
30. Section 31 of the JJ Act reads thus:
“31. Production before Committee.— (1) Any child in
need of care and protection may be produced before the
Committee by any of the following persons, namely:—
(i) any police officer or special juvenile police
unit or a designated Child Welfare Police Officer
or any officer of District Child Protection Unit or
inspector appointed under any labour law for the
time being in force;
(ii) any public servant;
(iii) Childline Services or any voluntary or non-
governmental organisation or any agency as may
be recognised by the State Government;
(iv) Child Welfare Officer or probation officer;
(v) any social worker or a public spirited citizen;
(vi) by the child himself; or
(vii) any nurse, doctor or management of a nursing
home, hospital or maternity home:
Provided that the child shall be produced before the
Committee without any loss of time but within a period
of twenty-four hours excluding the time necessary for the
journey.
(2) The State Government may make rules consistent with
this Act, to provide for the manner of submitting the report
to the Committee and the manner of sending and entrusting
the child to children’s home or fit facility or fit person, as
the case may be, during the period of the inquiry.”
(emphasis added)
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30.1 Sub-section (2) of Section 31 confers power on the State
Government to provide for the manner of submitting the report
to the CWC and the manner of sending and entrusting a child
to a children’s home or a fit facility. The West Bengal Juvenile
Justice (Care and Protection of Children) Rules, 2017 (for
short, ‘the WB Rules’) and in particular Rule 18, deal with
the production of children before the CWC. Section 32 of the
JJ Act enjoins an individual or police officer to make a report
regarding a child found separated from his/her guardian. Non-
reporting is made an offence.
31. Then comes Section 36 of the JJ Act which provides for inquiry to
be made by the CWC on production of child or on receipt of a report
under Section 31. Sub-section (1) of Section 36 provides that the
CWC may pass an order to send the child to a children’s home or a
fit facility or a fit person. Sub-section (2) of Section 36 contemplates
speedy social investigation by social welfare or child welfare officers.
The social investigation is required to be completed within fifteen
days. This enables the CWC to pass final orders. After completion
of the inquiry, the final order is to be passed in accordance with
sub-section (3) of Section 36, which reads thus:
“36. Inquiry.—
.. .. .. .. .. .. .. .. .. .. . .. .. .. .. . .. .. .. . .. .. .. .. ..
(3) After the completion of the inquiry, if Committee is of
the opinion that the said child has no family or ostensible
support or is in continued need of care and protection, it
may send the child to a Specialised Adoption Agency if
the child is below six years of age, children’s home or to
a fit facility or person or foster family, till suitable means of
rehabilitation are found for the child, as may be prescribed,
or till the child attains the age of eighteen years:
Provided that the situation of the child placed in a children’s
home or with a fit facility or person or a foster family, shall
be reviewed by the Committee, as may be prescribed.”
32. Then comes the crucial provision of Section 39 incorporated under
Chapter VII. Section 39 deals with the process of rehabilitation and
social re-integration, which reads thus:
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“39. Process of rehabilitation and social re-integration.—
(1) The process of rehabilitation and social integration
of children under this Act shall be undertaken, based
on the individual care plan of the child, preferably
through family based care such as by restoration
to family or guardian with or without supervision or
sponsorship, or adoption or foster care:
Provided that all efforts shall be made to keep siblings
placed in institutional or non-institutional care,
together, unless it is in their best interest not to be
kept together.
(2) For children in conflict with law the process of
rehabilitation and social integration shall be undertaken
in the observation homes, if the child is not released on
bail or in special homes or place of safety or fit facility or
with a fit person, if placed there by the order of the Board.
(3) The children in need of care and protection who are
not placed in families for any reason may be placed in
an institution registered for such children under this
Act or with a fit person or a fit facility, on a temporary
or long-term basis, and the process of rehabilitation
and social integration shall be undertaken wherever
the child is so placed.
(4) The Children in need of care and protection who are
leaving institutional care or children in conflict with law
leaving special homes or place of safety on attaining
eighteen years of age, may be provided financial support
as specified in section 46, to help them to re-integrate into
the mainstream of the society.”
(emphasis added)
33. There are various provisions, such as foster care, providing a sponsor
to the children, etc. Section 46 is another salutary provision that
provides that any child leaving child care on completion of eighteen
years of age may be provided with financial support to facilitate re-
integration into the mainstream of society in the manner as may be
prescribed by law. Section 46 of the JJ Act reads thus:
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“46. After care of children leaving child care
institution.— Any child leaving a child care institution on
completion of eighteen years of age may be provided with
financial support in order to facilitate child’s re-integration
into the mainstream of the society in the manner as may
be prescribed.”
33.1 “After care” has been defined in Section 2(5) of the JJ Act. It
is a provision for financial or otherwise support to persons in
the age group of 18 to 21 years. Rule 25 of the WB Rules has
been enacted to give effect to Section 46. Rule 25 reads thus:
“25. After Care of Children Leaving Institutional
Care.- (1) The State Government shall prepare a
programme for children who have to leave Child
Care Institutions on attaining eighteen years
of age by providing for their education, giving
them employable skills and placement as well as
providing them places for stay to facilitate their
re-integration into the mainstream of society
in consultation with concerned committees on
After Care.
(2) Any child who leaves a Child Care Institution
may be provided after care till the age of twenty-
one years on the order of the Committee or the
Board or the Children’s Court, as the case may be,
as per Form 37 and in exceptional circumstances,
for two more years on completing twenty-one
years of age.
(3) The District Child Protection Unit shall prepare
and maintain a list of organisations, institutions
and individuals interested in providing after care
as per their area of interest such as education,
medical support, nutrition, vocational training etc.
and the same shall be forwarded to the Board or
the Committee and all Child Care Institutions for
their record.
(4) The Probation Officer or the Child Welfare Officer
or Case Worker or social worker, shall prepare a post
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release plan and submit the same to the Board or
the Committee, through the concerned committees
on After Care, two months before the child is due to
leave the Child Care Institution, recommending after
care for such child, as per the needs of the child.
(5) The Board or the Committee or the Children’s
Court, while monitoring the post release plan will
also examine the effectiveness of the aftercare
programme, particularly whether it is being utilized
for the purpose for which it has been granted and
the progress made by the child as a result of such
after-care programme.
(6) Children who are placed in aftercare programme,
shall be provided funds by the State Government
for their essential expenses; such funds shall be
transferred directly to their bank accounts.
(7) The services provided under the after-care
programme may include:

(i) community group housing on a temporary
basis for groups of six to eight persons;
(ii) provision of stipend during the course of
vocational training or scholarships for higher
education and support till the person gets
employment;
(iii) arrangements for skill training and
placement in commercial establishments
through coordination with National Skill
Development Programme, Indian Institute for
Skill Training and other such Central or State
Government programmes and Corporates, etc.;
(iv) provision of a counsellor to stay in regular
contact with such persons to discuss their
rehabilitation plans;
(v) provision of creative outlets for channelising
their energy and to tide over the crisis periods
in their lives;
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(vi) arrangement of loans and subsidies
for persons in after-care, aspiring to set up
entrepreneurial activities; and
(vii) encouragement to sustain themselves
without State or institutional support.
(emphasis added)”
33.2 Section 46, read with Rule 25, is one of the most critical
provisions that needs to be effectively implemented. Thus, the
JJ Act has adequate provisions to ensure the care, protection,
treatment, and rehabilitation of the victim of an offence under
the POCSO Act. The ultimate object is to integrate the child
in need of care and protection into society to lead a dignified
and meaningful life.
34. If sub-section (6) of Section 19 is implemented in relation to the
victims of the offences under the POCSO Act and thereafter, the
CWC strictly implements the provisions of the JJ Act which we have
referred to above, no victim will face the situation which the victim
in this case had to face. The JJ Act is a complete code that makes
provisions for the care, protection, treatment, and development of
children in need of care and protection. The JJ Act provides for
making available their basic needs and protection. The Act takes
care of all the needs of the victims under the POCSO Act who fall
under the category of children in need of care and protection. The
object is to undertake the rehabilitation and social re-integration
process of such victims based on individual care plans as provided
under Section 39 of the JJ Act. Section 46 is a provision that requires
the State Governments to frame rules to provide financial support
to any child living in a child care institution upon completion of 18
years of age. The financial support has to be very exhaustive as
the object of financial support is to facilitate a child’s re-integration
into mainstream society.
35. However, at the grassroot level, sub-section (6) of Section 19 is not
being implemented. Even if the information is provided to the CWC,
the children in need of care and protection are not being produced
before the CWC. Even if the information is given under sub-section
(6) of Section 19 of the POCSO Act, the CWCs are not taking any
action, though, under clause (xii) of Section 30, CWC has the duty
to take suo motu congnizance of the cases and reach out to the
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children in need of care and protection who are not produced before
the CWC. Under sub-section (6) of Section 19, the police are under
a mandate to report the matter to the jurisdictional Special Court or
the jurisdictional Sessions Court, in the event the Special Court has
not been established. On getting information, it will be ideal if the
Special Courts or the Sessions Courts forward the information to the
jurisdictional CWC. It is very crucial that sub-section (6) of Section
19 is scrupulously implemented and the CWCs take immediate
action to protect the victim. Therefore, we are directing that a copy
of this judgment should be forwarded to the Secretaries of the Law
Department of each State and Union Territories. The Law Secretaries
must coordinate with the concerned departments and ensure that the
benefits of these statutory provisions under the JJ Act are extended
to the victims of the offences under the POCSO Act. The Secretaries
will also ensure that the State Governments undertake the process
of framing rules as required by Section 110(1), including the rules
provided under Section 46, to make the measures provided under
the JJ Act more effective.
36. It is nobody’s case that, in the present case, recourse was taken
to the provisions starting from sub-section (6) of Section 19 of the
POCSO Act. As these statutory provisions were overlooked entirely,
a situation was created which did not allow the victim to make an
informed choice about her future. She did not get that opportunity
even after attaining majority.
37. It is the responsibility of the State to take care of helpless victims
of such heinous offences. Time and again, we have held that the
right to live a dignified life is an integral part of the fundamental right
guaranteed under Article 21 of the Constitution of India. Article 21
encompasses the right to lead a healthy life. The minor child, who is
the victim of the offences under the POCSO Act, is also deprived of
the fundamental right to live a dignified and healthy life. The same is
the case of the child born to the victim as a result of the offence. All
the provisions of the JJ Act regarding taking care of such children and
rehabilitating them are consistent with Article 21 of the Constitution of
India. Therefore, immediately after the knowledge of the commission
of a heinous offence under the POCSO Act, the State, its agencies
and instrumentalities must step in and render all possible aid to the
victim children, which will enable them to lead a dignified life. The
failure to do so will amount to a violation of the fundamental rights
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guaranteed to the victim children under Article 21. The police must
strictly implement sub-section (6) of Section 19 of the POCSO Act.
If that is not done, the victim children are deprived of the benefits
of the welfare measures under the JJ Act. Compliance with Section
19(6) is of vital importance. Non-compliance thereof will lead to a
violation of Article 21.
38. Unfortunately, in our society, due to whatever reasons, we find that
there are cases and cases where the parents of the victims of the
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 victim of the offences as provided in law.
Even the child born to such a victim needs to be taken care of in
a similar manner by the State. After the victim attains the majority,
the State will have to ensure that the victim of the offence can stand
on his/her legs and, at least, think of leading a dignified life. That is
precisely what Section 46 of the JJ Act provides. 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.
39. We may note here that the Ministry of Women and Child Development,
Government of India, has framed a scheme for care and support to
the victims under Sections 4 and 6 of the POSCO Act. The scheme
is very exhaustive and even contains a provision for providing
accommodation to girl child victims up to the age of eighteen years
and aftercare support up to the age of twenty-three years. It provides
health services, counselling, and mental health services. It provides
for helping the victim to acquire education and vocational skills.
Apart from the scheme mentioned above of the Ministry of Women
and Child Development, Government of India, the National Legal
Services Authority (NALSA) has come out with a Compensation
Scheme for Women Victims and Survivors of Sexual Assault/other
Crimes-2018. Extensive benefits are made available to the victims
of sexual offences under the said scheme.
WHAT NEXT?
40. At this stage, we may note that on 9th May 2024, the learned counsel
appearing for the State has filed a written note which records the
State’s assurance to support the victim. In paragraph 5 of the note,
the State has stated thus:
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“5. Such support is enumerated below only by way of
illustration-
a. That the State Govt is committed to finding a home
for the victim (Mother) and the minor child in a
safe environment and also provide for all the daily
requirements.
b. That the State shall further also coordinate with NGOs
working in this space to prepare a work-cum-life plan
for the victim and the minor child in order to make
her independent and ensure that she can make an
informed choice about her and her child’s future and
her stand in the present proceedings.
c. Till such time that the victim is financially independent,
state will provide for the educational need of the
minor child.
d. Any other logistical support that this Hon’ble Court
may deem fit and appropriate.”
40.1 We may note here that Mr. Huzefa Ahmadi, the learned senior
counsel representing the appellant-State in Criminal Appeal
No.1451 of 2024, without taking instructions from the State,
had earlier assured the Court to extend support to the victim
in the manner mentioned above. The State Government must
support the victim’s child. In this case, there is a failure of
the machinery under the JJ Act in the State to discharge its
obligations to the victim. Therefore, the State Government
must go out of its way to help the victim.
41. Now, the question is whether we can force the child to take benefit
of the support extended by the State Government. It may be argued
that it is too late for the State to come out with this offer. Still, the
Court must allow the victim to make an informed choice after being
informed the details of the support that the State is willing to extend.
We must do so as, at no stage, she was given such an option and
an opportunity to make an informed choice about her future. Now, the
question is how to enable the victim to exercise her option. This must
be left to very qualified professionals/experts to ascertain her views.
This can be done by directing the State to constitute a team of two or
three experts, including a clinical psychologist and a social scientist,
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who should meet the victim at a proper place and inform the victim
about the offer of the State Government with all its material particulars.
The state government can get assistance from expert bodies like the
National Institute of Mental Health and Neurosciences (NIMHANS) or
the Tata Institute of Social Sciences (TISS) to constitute the team. The
experts will have to meet the child on multiple occasions. While doing
so, the experts will have to carefully ascertain the kind of support,
if any, the victim and her child are getting from the accused and his
family members. For that purpose, the committee can seek the help
of the local child welfare officer. We must leave it to the committee of
experts to decide how it will do the exercise. The place, the time and
the methods must be left to the Committee. The committee will have
to perform its duties cautiously and sensitively. The committee must
ensure that this exercise does not make the victim more insecure.
CONCLUSIONS
42. Thus, to conclude, we hold that the accused is guilty of the offences
punishable under sub-sections (2)(n) and (3) of Section 376 of the
IPC and Section 6 of the POCSO Act. The issue regarding sentencing
will be considered after the committee’s report is received.
43. This extraordinary situation was created because the State machinery
did not follow the provisions of law starting from sub-section (6) of
Section 19 of the POCSO Act. 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.
44. Hence, we pass the following order:
(a) The impugned judgment of the High Court is set aside and
the judgment of the Special Court is restored to the extent
of the conviction of the accused for the offences punishable
under sub-sections (2)(n) and (3) of Section 376 of the IPC
and Section 6 of the POCSO Act. Accordingly, the accused
stands convicted. The acquittal of the accused for the offences
punishable under Sections 363 and 366 of the IPC is confirmed.
The appeal is partly allowed. The issue regarding sentencing
will be considered after receiving the report of the committee
in terms of clause (h) below.
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(b) We direct the Government of West Bengal to constitute a
committee of three experts, including a clinical psychologist
and a social scientist. The State Government may take the
assistance of NIMHANS or TISS for constituting the committee.
A child welfare officer shall be appointed to assist the committee
as its coordinator and secretary;
(c) The committee shall be formed within three weeks from today;
(d) Within one week from the date of formation of the committee,
the State Government shall provide all the material particulars/
details of the benefits which it is willing to extend to the victim
as stated in paragraph 5 of the note submitted on 9th May 2024
by the learned senior counsel appearing for the State;
(e) Thereafter, the committee shall meet the victim of the offences
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. This exercise will naturally require meetings
with the victim on multiple occasions. In what manner this task
should be performed is left to the committee to decide;
(f) The committee members must perform their duties very carefully
and sensitively while ensuring that the victim does not develop
a feeling of insecurity. While doing the exercise, the committee
will endeavour to carefully ascertain the kind of support, if any,
the victim and her child are getting from the accused and his
family members;
(g) The State Government and its officials shall render all possible
facilities and help to the committee members;
(h) The coordinator of the committee shall submit a report in a
sealed cover to this Court by 18th October 2024 through the
Advocate-on-Record for the State Government. The report
can be a preliminary report or a final report. The report should
contain the details of the interactions with the victim and the
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opinion and recommendations of the committee. The committee
is free to give its opinion on the action which would be in the
best interest of the victim and her child; and
(i) We direct the Registry to forward copies of this judgment to
the Secretaries of Law and/or Justice Departments of all the
States and Union Territories. The Secretaries shall convene
meetings of the Secretaries of the concerned departments and
other senior officials. The object of holding such meetings is to
ensure that appropriate directions are issued to all concerned
to strictly implement the provisions of Section 19(6) of the
POCSO Act and the relevant provisions of the JJ Act, which
we have elaborated above. The State/Union Territories must
create machinery to do so. The State/Union Territories shall also
assist the victims in getting the benefits under the scheme of
the Government of India and the scheme of NALSA, which we
have referred to above. In the meetings, the issue of framing
Rules by the States to give effect to the provisions of Section
46 of the JJ Act, shall also be considered. The Secretaries
shall forward the compliance reports to the Secretary of the
Ministry of Women and Child Development, Government of
India, within a period of two months from today. The Secretary
of the Ministry of Women and Child Development shall compile
the reports and submit an exhaustive report before this Court
within three months from today. A copy of this judgment shall
also be forwarded to the Secretary to the Ministry of Women
and Child Development, Government of India.
45. To consider the report submitted by the expert committee and for
considering the sentencing, list this petition/appeal on 21st October
2024 at 03:00 p.m. before this Bench.

Result of the case: Matter listed to consider report submitted by
expert committee and for sentencing.

†
Headnotes prepared by: Ankit Gyan