Mental age of victim can’t be ground for POCSO: SC

Satya Prakash

Tribune News Service

New Delhi, July 21

In an important verdict, the Supreme Court on Friday ruled that the mental age of a sexual assault victim cannot determine if trial should be held under the Protection of Children against Sexual Offences Act of 2012 (POCSO).

The definition of the term “age” in Section 2(d) of the Act cannot include mental age of a victim and hence it has to be the physical age of the victim, a Bench of Justice Dipak Misra and Justice RF Nariman said.

“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,” said Justice RF Nariman, who wrote a separate but concurring verdict.

“A reading of the objects and reasons of the aforesaid Act together with the provisions contained therein would show that whatever is the physical age of the person affected, such person would be a “person with disability” who would be governed by the provisions of the said Act. Conspicuous by its absence is the reference to any age when it comes to protecting persons with disabilities under the said Act,” Justice Nariman said.

The POCSO Act is a special legislation enacted to try those accused of sexually assaulting minors in special courts set up in accordance with an UN Convention on Rights of the Child 1992.

The court order came on a PIL filed by the mother of a 38-year-old rape victim suffering from cerebral palsy since birth. Because of her peculiar medical condition, she had the mental age of a six-year-old child.

As the petitioner wanted the accused to be tried under the POSCO Act, the Bench was forced to decide if the special law would apply where the mental age of the victim made her a child despite her physical age being that of an adult.

The Bench, however, ordered the Delhi State Legal Services Authority to give maximum compensation under Section 357A of the Criminal Procedure Code. 

The court had stayed criminal proceedings in the case and the accused died during pendency of the case.