The Madras High Court is set to embark on an exercise of quashing criminal cases registered against minor boys for having consensual relationships with, or having eloped with minor girls, if it finds that these cases are against the interest and future of the children involved, besides being an abuse of the process of court or an abuse of the process of law.
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Justices N. Anand Venkatesh and Sunder Mohan have also decided to put an end to the two-finger test conducted on victims of sexual offences and the archaic potency test conducted on the suspects, by collecting their sperm. The judges have directed the police to come up with a standard operating procedure to conduct a potency test by merely collecting blood samples.
The interim orders were passed on a habeas corpus petition filed in 2022 with respect to a missing minor girl in Cuddalore district. After finding it to be a case of elopement, the judges recorded the submission of the police that they had already filed a closure report before the Juvenile Justice Board after finding that no offence had been committed.
However, when the judges’ attention was drawn to a similar case of two minor children having eloped from Dharmapuri district to Chennai where they rented a house, the Bench found that the personnel of an All-Women Police Station had registered a case against the minor boy under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Further, a Block Development Officer (BDO) had taken away the minor girl and lodged her in a private home for over a month. She was not allowed to go with her parents despite being pregnant. The minor boy too, was detained at a ‘place of safety’ as defined under the Juvenile Justice (Care and Protection of Children) Act of 2015 for nearly 20 days.
Pointing out that the minor boy and girl involved in such incidents would fall under the definition of the term ‘child’ (any person below the age of 18 years) as defined under the POCSO Act, the judges were shocked to find the police had treated the minor girl in the case as a victim, and the minor boy as a child in conflict with the law.
“This case must be taken to be a wakeup call to ensure that such incidents at least do not happen in the future. It is sad that none of the stakeholders were sensitive to the fact that both the boy and the girl were under 18 years and both of them are categorised as child under the relevant enactment,” the Bench wrote.
After finding that the minor girl had given a statement to the police that it was she who forced the boy to elope with her and also taking into account the disinclination on the part of her parents to prosecute the case against the minor boy, the judges quashed the First Information Report (FIR) registered by the police on the basis of the BDO’s complaint.
The FIR was quashed by exercising the High Court’s writ jurisdiction under Article 226 of the Constitution read with Section 482 (inherent powers of the High Court to pass such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice) of the Code of Criminal Procedure.
Authoring the order, Justice Venkatesh said, as many as 1,728 such cases appeared to have been registered in Tamil Nadu since 2010 and of them 1,274 were pending.
Similarly, 21 cases were pending in Puducherry, six in Karaikal and two in Yanam (a total of 29 in the region).
All these cases were at the stage of either investigation or trial. The Bench led by Justice Venkatesh directed the Tamil Nadu Director-General of Police to identify the cases involving consensual relationships from among the 1,274 pending cases and prepare a separate list by August 11. A similar direction was issued to the Puducherry DGP.
“If those cases are segregated from the pending cases, it will be easy for this court to deal with them and in appropriate cases, this court can also exercise its jurisdiction and quash the proceedings if the proceedings are ultimately going to be against the interest and future of the children involved in those cases,” he wrote.
The Bench also insisted that the Tamil Nadu State Legal Services Authority and Tamil Nadu Judicial Academy conduct senisitisation programmes for Child Welfare Committees and the presiding officers of Juvenile Justice Boards so that they don’t unnecessarily deny the parents the custody of children in conflict with the law.
Seeking to end the practice of the two-finger test, the judges directed the DGPs to find out whether such a test had been conducted in any case since January 1, 2023 and bring it to the notice of the court for passing appropriate orders. The judges also insisted upon discontinuing the archaic method of collecting sperm for a potency test.
“Science has improved metes and bounds and it is possible to conduct this test by just collecting the blood sample. Such advanced techniques are being followed across the world and we should also fall in line. Hence there will be a direction to the respondents to come up with a SOP for conducting potency test by merely collecting the blood sample,” the Bench ordered.
The judges also directed the High Court Registry to mark a copy of their order available to the Bar associations in the principal seat of the High Court in Chennai, and at the Madurai Bench so that any lawyer could come forward in assisting the court during the subsequent hearings of the case beginning from August 11.