‘Adult intent, automatically attributed to infant, is itself an adult error': Gujarat HC quashes 2010 rape FIR against minor; quotes from SC judgment
The order of Justice J C Doshi of the Gujarat HC on Wednesday considered the submission of the advocate of the petitioner that laid emphasis on Section 83 of the Indian Penal Code (IPC), which stated that 'nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.' The accused was aged under 11 years in 2010.
Stating that the Inspector of the Rajkot police station 'must not have the knowledge of Section 83 of the IPC', the HC said that the petition 'deserves consideration', especially since it is not the case of the prosecution that 'forensic test was carried out at the relevant time, that whether the petitioner was, though 11 years old at the time of alleged incident, mature enough to understand the consequences of the alleged act.'
The HC order, while citing relevant case laws of the Supreme Court, stated, 'According to this Court, the PI, Bhaktinagar Police Station, must not have knowledge of section 83 of the IPC or (that) filing of FIR is in defiance of section 83 of the IPC. Under the circumstances, present petition requires consideration.'
The court also directed the investigating officer concerned as well as the trial court to remove and delete the name of the petitioner from the police records, investigation papers as well as the Registry to protect his identity.
The advocate appearing for the minor had submitted to the court that at the time of the incident, the petitioner was ten-and-a-half years old and therefore, 'cannot be treated as accused' under Section 83 of the IPC on the ground of his 'lack of majority'.
The petitioner's advocate also submitted that 'no forensic intervention was carried out to establish that he was major (by age) to understand the offence…'
The counsel appearing for the complainant of the FIR had submitted that the allegations were 'of serious nature and whether the petitioner is mature or understanding (of) the seriousness of the offence can be tested during trial and the FIR cannot be quashed on the touchstone of reading section 83 of the IPC'.
The 2010 FIR was lodged against the minor under IPC Sections 376 (rape), 354 (criminal force against woman with intent to outrage her modesty), 504 (intentional insult with intent to provoke breach of peace), and 114 (abettor present when offence is committed) .
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