Why in News?

Recently, the High Court of Madhya Pradesh in the case of Kailash Sharma v. State of MP & Ors., has quashed rape case and held that an adolescent in the age group of 17 or 18 years would be capable of making “conscious decisions regarding his or her well-being”.

Background

• The case was filed by a class XII student, aged 17 years and 10 months in the year 2022 against a 30-year-old man who committed sexual intercourse by threatening to make her obscene pictures viral and made a false promise of marriage.
• A petition was filed before the High Court under Section 482 of the Criminal Procedure Code, 1973 for quashing of the FIR registered under Sections 376, 506 of Indian Penal Code, 1860 as well as under Sections 3, 4 of Protection of Children from Sexual Offences Act, 2012.

Court’s Observations

• Justice Deepak Kumar Agarwal observed that the Court is looking into the physical and mental development of an adolescent of that age group and the Court would consider it logical that such a person is capable of making conscious decision as regard his or her well-being. Prima facie, it appears that there is no mens rea involved.
• The Court relied on Vijayalakshmi & Anr. v. State Rep. By. Inspector of Police, All women Police Station (2021) while making the observation.
• In this Case, the Madras HC held that the Protection of Children from Sexual Offences Act, 2012 (POCSO) does not intend to bring within its scope, cases involving adolescent teenagers in romantic relationships.

Legal Provisions

Section 376 of Indian Penal Code, 1860

• Section 376 provides the punishment for rape.
• The punishment for committing rape is rigorous imprisonment for ten years which may extend to Life Imprisonment and a fine.
• The offence under section 376 IPC is non-bailable and cognizable.
• The following amendments were made in Section 376 by virtue of the Criminal Amendment Act, 2018:
• The minimum punishment for rape of a woman was increased from 7 years to 10 years.
• Rape of a girl below the age of 16 years will carry the minimum punishment of 20 years, which can be extended to life imprisonment.
• Section 376AB was inserted, which states that rape of a girl below the age of 12 years will carry the minimum punishment of 20 years, which can be extended to life imprisonment or death penalty.
• Section 376DA was inserted, which states that in case of gang rape of a girl under the age of 16 years, the punishment will be of a life sentence.
• Section 376 DB states that in case of gang rape of a girl below the age of 12 years, the punishment will be life sentence or death.
• Section 375 of Indian Penal Code, 1860 defines rape and it includes all forms of sexual assault involving non-consensual intercourse with a woman.
• The provision, however, lays down two exceptions as well:
• Apart from decriminalizing marital rape, it mentions that medical procedures or interventions shall not constitute rape.
• Exception 2 of Section 375 of the Indian Penal Code states that “sexual intercourse by a man with his wife, and if the wife not being under fifteen years of age, is not rape”.

Section 506 of Indian Penal Code, 1860

• Section 506 of Indian penal code, 1860 prescribes punishment for the offence of criminal intimidation.
• It states that whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
• Criminal intimidation is defined in Section 503 of the Indian Penal Code,1860 as an offence committed in which an individual endangers or threatens another with harm to his person, reputation, or property in order to compel the other individual to do an act that he is not bound by law to perform.

Section 482 of the Criminal Procedure Code, 1973

Section 482 of the Criminal Procedure Code, 1973 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers.

POCSO Act, 2012

• This Act was passed in 2012 under the Ministry of Women and Child Development.
• It is a comprehensive piece of legislation designed to protect children from crimes including sexual assault, sexual harassment, and pornography.
• It is gender neutral act and considers welfare of the child as a matter of paramount importance.
• Section 3 of this Act deals with penetrative sexual assault and Section 4 prescribes punishment for penetrative sexual assault.
• Section 3- Penetrative sexual assault –

A person is said to commit “penetrative sexual assault if­

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

Section 4 - Punishment for penetrative sexual assault –

Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.