POCSO can’t be invoked for rape of adult with child-like brain: SC

New Delhi: The stringent POCSO Act to deal with sexual offences against minors cannot be invoked to prosecute a man for raping a mentally-challenged adult victim having an under-developed brain like a child, the Supreme Court today ruled.

The apex court said that according to Section 2 (d) of the POCSO Act, the term “age” cannot include “mental” age as the intent of the Parliament was to focus on children, i.e persons who are physically under the age of 18 years.

Protection of Children from Sexual Offences (POCSO) Act 2012 deals with the sexual offences against those below 18 years of age.

“On a reading of the POCSO Act, it is clear to us that it is gender neutral. In such a situation, to include the perception of mental competence of a victim or mental retardation as a factor will really tantamount to causing violence to the legislation by incorporating a certain words to the definition.

“By saying ‘age’ would cover ‘mental age’ has the potential to create immense anomalous situations without there being any guidelines or statutory provisions. Needless to say, they are within the sphere of legislature. To elaborate, an addition of word ‘mental’ by taking recourse to interpretative process does not come within the purposive interpretation as far as the POCSO Act is concerned,” a bench headed by Justice Dipak Misra said.

In a concurring separate judgement, Justice R F Nariman said that the Parliament, when it made the 2012 POCSO Act was fully aware of the distinction between a woman who is a minor and an adult woman who is mentally ill and chose to protect only children whose physical age was below 18 years.

He said the interpretation of Section 2(1)(d) of the POCSO Act, 2012 cannot include “mental” age as such an interpretation would be beyond the “Lakshman Rekha”.

“Thus, it is clear that viewed with the lens of the legislator, we would be doing violence both to the intent and the language of Parliament if we were to read the word ‘mental’ into Section 2(1)(d) of the 2012 Act.

“Given the fact that it is a beneficial/penal legislation, we as judges can extend it only as far as Parliament intended and no further. I am in agreement, therefore, with the judgement of my brother, including the directions given by him,” Justice Nariman said.

The verdict came on a plea filed by a 60-year-old Delhi- based lady doctor whose 38-year-old daughter, suffering from cerebral palsy with a mental age of 6-8 years, was raped by the man in 2010.

The man accused of sexually assaulting the woman had died during the pendency of the case.

The victim’s mother had contended that biological age should not be the governing yardstick and her daughter should be considered as a child because she is intellectually challenged and mentally retarded.

The top court directed Delhi State Legal Services Authority to award compensation to the victim keeping in view the scheme framed by the Delhi government.

“As regards the quantum, I am of the convinced opinion that it is a fit case where the victim should be granted the maximum compensation as envisaged under the scheme. I clarify that it is so directed regard being had to the special features of the case,” Justice Misra said.

The court said stretching of the words ‘age’ and ‘year’ would be encroaching upon the legislative function.

“Needless to emphasise that courts sometimes expand or stretch the meaning of a phrase by taking recourse to purposive interpretation. A Judge can have a constructionist approach but there is a limitation to his sense of creativity.

“In the instant case, I am obliged to state that stretching of the words ‘age’ and ‘year’ would be encroaching upon the legislative function. There is no necessity,” the bench said.

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