In a peculiar case where a first information report was registered 34 years after the act, the Supreme Court has held against rape even though the prosecutrix was only 15 years old at the time of sexual contact with the accused.
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CAN statutory rape be condoned on account of decades having passed before a complaint is lodged?
In an engrossing case, the Supreme Court has termed the fact of the prosecutrix’s age being below the age of consent at the time of sexual contact with the accused as a ‘bald’ statement.
A division Bench comprising Justices B.R. Gavai and Sandeep Mehta made this observation in a case where the first information report (FIR) had been filed 34 years after the incident.
The Bench observed: “No explanation whatsoever is given in the FIR as to why the prosecutrix was keeping silent for a long period of 34 years. The material on record shows that the relationship was consensual, inasmuch as the son who born of the said relationship has been treated by the appellant as his son and all the facilities, including money, have been provided to him.”
Brief facts
An FIR was filed by a prosecutrix on December 4, 2016, alleging that when she was 15 years old, the accused raped her and because of that, she conceived a child on April 7, 1983.
During the investigation, statements of the prosecutrix, her son and the accused were recorded. Blood samples of the three were sent for medical examination and it was found that the accused was indeed the father of the prosecutrix’s son.
The police found that the accused had provided cash and other facilities to the son during the intervening years.
A final report was filed on December 4, 2016. As per the final report filed by the investigating officer, the prosecutrix was raped in 1982.
The final report states that the accused coerced the prosecutrix and threatened her to not lodge an FIR against him.
The final report also mentions that the present FIR was lodged because of a property dispute between the prosecutrix, her son and the accused. The investigating officer stated that the matter was a civil dispute, and the appellant should be discharged in the present case.
The final report was rejected by the magistrate, who ordered that cognisance shall be based on the police report.
On July 4, 2017, the magistrate took cognisance of the offences punishable under Sections 376 (punishment for rape) and 506 (punishment for criminal intimidation) of the Indian Penal Code, 1860.
The facts do not mention the reasons why the magistrate took cognisance based on the police report.
Being aggrieved by this, the accused filed a petition under Section 482 (saving of inherent power of high court) of the Criminal Procedure Code, 1973 for quashing criminal proceedings before the Gauhati High Court.
The high court had dismissed the petition on August 22, 2022. Against this Order, the accused appealed before the Supreme Court. The counsel for the accused submitted that the present case is a clear abuse of the process of law.
As per the counsel, the FIR was filed 34 years after the incident to blackmail the accused. The State and the counsel for the prosecutrix vehemently opposed the appeal.
The counsel for the prosecutrix argued that just because there is a delay of 34 years in lodging the FIR, it cannot be a ground for quashing the proceedings. She submitted that the statement of the prosecutrix prima facie be taken at face value.
Further, the counsel told the court that the prosecutrix was a minor at the time of the sexual contact, so even if it was consensual, an offence under Section 376 would be made out.
What did the Supreme Court say?
The Supreme Court perused the final report which clearly states that the prosecutrix’s son submitted that the accused provided money and other facilities to him as his son.
It also recognised that the final report mentions that the prosecutrix, in connivance with her son, filed an FIR 34 years after the incident only on account of greed for a property.
The court acknowledged that the investigating officer in the final report had opined that the present matter was a civil dispute and that the appellant should be discharged.
Next, the court looked at how the magistrate took cognisance of the matter. On this, it stated that the magistrate, while exercising its powers under Section 190 (cognisance of offences by magistrates) of the CrPC is not bound to accept the final report of the investigating officer.
The court added: “However if the learned magistrate disagrees with the findings of the investigating officer, the least that is expected of him is to give reasons as to why he disagrees with such a report and as to why he finds it necessary to take cognisance despite the negative report submitted by the investigating officer.”
The court referred to its case in the State of Haryana and others versus Bhajan Lal and Others (1992) and stated that Bhajan Lal clearly states that the powers of the high court under Section 482 of CrPC should be sparingly used and only in the rarest of the rare cases.
In Bhajan Lal, the court held that in exercising the power of quashing criminal proceedings, the court should not normally embark upon an enquiry as to the reliability or genuineness of the allegations made in the FIR.
In this case, the court identified seven categories of cases where powers of Section 482 CrPC could be exercised, as follows:
- Where the allegations even if taken on face value and accepted in their entirety do not prima facie constitute an offence.
- Where the allegations in the FIR and other materials do not disclose the cognisance of an offence.
- Where the uncontroverted allegations in the FIR and complaint and evidence collected does not disclose the commission of any offence.
- Where the allegations in the FIR do not constitute a cognisable offence but only a non-cognisable offence and no investigation is permitted by a police officer without an Order of a magistrate.
- Where the allegations made in the FIR was absurd and inherently improbable.
- Where there is an express legal bar to the institution or continuance of the proceedings.
- Where the criminal proceedings are manifestly attended with mala fide or that the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused.
Considering these different categories of cases, the court found that the present case falls within the categories of cases where the allegations made in the FIR are absurd and inherently improbable and that the proceedings are maliciously instituted with an ulterior motive to wreak vengeance on the accused.
The court held that the relationship between the prosecutrix and the appellant was consensual.
Based on all these considerations, the court held that the investigating officers’ findings that the present FIR was lodged because of greed for the property cannot be said to be erroneous.
Stating that the continuation of the proceedings would be an abuse of the process of law, the court quashed the Orders of the High Court and the magistrate.
What does the law say?
While the filing of an FIR after 34 years is not time-barred, the law on the age of consent expressly provides that the offence against the prosecutrix was statutory rape under Section 375 of the IPC.
At the time of the sexual contact between the prosecutrix and the accused, the age of consent under Section 375 of the IPC was 16 years.
This was subsequently revised to 18 years by the Protection of Children from Sexual Offences Act, (POCSO Act), 2012 and the Criminal Law (Amendment) Act, 2013.
Courts have been inconsistent with applying the law on the age of consent. In some cases, the Supreme Court and high courts have taken a strict view of the law, but in other cases, they have been lenient for various reasons, such as coming-of-age of the parties involved, the existence of ‘love’ between the accused and the purported victim or even the fact that the accused has married the purported victim.
For instance, the Bombay High Court recently gave bail to a 26-year-old accused of raping a 13-year-old on the grounds that there had been a love affair between them.
Another case highlighting the larger picture of inconsistency in the interpretation of the law on the age of consent is the recent Order of the Madras High Court observing that watching child pornography in private per se is not an offence, following a Kerala High Court judgment which said that watching pornography in private is not an offence.
In that case too, the court refused to make a distinction on the basis of age, even though Section 15 of the POCSO Act clearly provides that watching pornography with children in it is an offence.
Interestingly, the Madras and Karnataka High Court sent references to the Law Commission of India to rethink the age of consent under the POCSO Act in 2022.
However, the commission, in September last year, denied any possibility of revising the age of consent or introducing an exemption in case of a consensual sexual act involving a female above the age of 16.
Click here to read the order.
