While dealing with the bail plea of an accused under the POCSO Act, the Madhya Pradesh High Court recently observed that it would be downright unjust to apply ‘ignorance of the law as an excuse’ in cases where the offenders are illiterate.
The court said the application of the said rule for serious or grave offences has a rational basis but in cases where consensual sexual relations amongst the genders are outlawed only because the legislation prescribes an age for consent, resulting in heavy punishment, is a travesty of justice.
“However, the courts are helpless as they must enforce the legislative will as it is. The road to hell is indeed paved with good intentions,” said the bench of Justice Atul Sreedharan.
The court stressed that the literacy rate in Madhya Pradesh is 69.32%, of which the male literacy rate is 78.73% and the female literacy rate is 59.24%. “Close to 40% of the female population in the State of Madhya Pradesh is illiterate. In rural areas, the literacy rate is even lower at 74.74% for males and 48.49% for females.
Thus, more than 51.5% of the rural female population in Madhya Pradesh is illiterate,” the court underscored.
Further, regarding the POCSO Act, the court observed that POCSO is gender neutral and “child” is defined in s. 2(d) as “any person below the age of eighteen years”.
“Therefore, how does the court proceed where both the girl and boy are below the age of 18 and de facto consent is undisputed?” the court deliberated.
The court further said it wondered how the justice system will determine who the victim is and who the offender is in a case where both the boy and girl are below the age of consent.
Moreover, the court underlined that the provisions of the POCSO Act do not distinguish between rape (as in without consent) and statutory rape (as with consent but punishable because victim is below eighteen years of age).
The court, therefore, requested the Law Commission to consider the following and suggest the amendment of the POCSO Act to Parliament to give discretion to the Special Judge where;
(a) Where the prosecutrix is below the age of consent but de facto consent is apparent, not to have a minimum sentence and instead, give the discretion to the Special Court (who is a senior Session Judge usually with more than twenty years of judicial experience) to impose a sentence as per the facts and circumstances of the case, which can extend up to twenty years and;
(b) Where the prosecutrix is below the age of consent and the relationship has culminated in marriage (with or without children), there should not be any sentence of imprisonment and instead the Special Court be empowered to impose alternate correctional methods like community service etc.
Furthermore, the court asked the Principal Secretary, Department of Public Relations in the State Government to publish, thrice a week, the stringent provisions of the POCSO Act and the effect of its violation in all prominent Hindi newspapers having circulation in the state and disseminate the same through the television and radio as well.
The court also directed that the teaching staff of all state government schools be trained, at regular intervals, to convey to the students, the liability under the POCSO Act.
Lastly, regarding the case at hand, where the victim and the accused were now married and had a child together, the court held that it may be a case of statutory rape rather than one of forceful rape.
Accordingly, the court allowed the accused’s bail application on bail bond of Rs 5,000.
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