A bench of Justices A S Oka and Ujjal Bhuyan said, “the Judge has to decide the case and not preach”, adding that the judgment “cannot contain the Judge’s personal opinions on various subjects.”

“We must remember that judgment is neither a thesis nor a piece of literature,” the bench said.

The HC had acquitted a man who was pronounced guilty by a trial court under Section 6 of POCSO Act, and IPC sections 363, 366, 376(2)(n) and 376(3). The SC upheld the acquittal under IPC sections 363 and 366 but restored the conviction under section 6 of the POCSO Act and IPC sections 376(2)(n) and 376(3).

The HC had held that the offences punishable under IPC Sections 363 and 366 were not made out and “considering the factual scenario” set aside the conviction under the other provisions. Setting this aside, the SC said the HC 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”.

The SC order said, “The HC 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.”

It asked, “how can an act that is an offence punishable under the POCSO Act be described as ‘a romantic relationship’?”

Though it was claimed that the victim girl — who was 14 years old at the time of the incident — was married to the accused, the SC noted there was no evidence to support this.

The SC said, “The duty of the HC was to ascertain on the evidence whether the offences under Section 6 of the POCSO Act and IPC Section 376 were made out. In view of “sixthly” in IPC Section 375, penetrative intercourse with a woman under 18 years of age, with or without her consent, constitutes an offence of rape. Therefore, whether such offence arises from a romantic relationship is irrelevant”.

The SC said that even if the accused and the victim (who has now attained majority) were to come out with a settlement, “the HC could not have quashed the prosecution.”

“Unfortunately, in our society, due to whatever reasons, we find that there are cases where the parents of the victims of the offences under the POCSO 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,” the top court said.

“Even the child born to such a victim needs to be taken care of in a similar manner by the state,” the bench said.

In the present case, the apex court noted,“sadly… there is a complete failure of the state machinery. Nobody came to rescue the victim, and thus, for her survival, no option was left to her but to seek shelter with the accused”.

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