Full Judgment Text
2025 INSC 778
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL/APPELLATE JURISDICTION
SUO MOTU WRIT PETITION (C) NO. 3 OF 2023
IN RE: RIGHT TO PRIVACY OF ADOLESCENTS
with
CRIMINAL APPEAL NO.1451 OF 2024
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. Criminal Appeal No.1451 of 2024 has been
preferred by the State of West Bengal, being aggrieved by
th
the judgment and order dated 18 October 2023, passed
by a Division Bench of the High Court of Judicature at
Calcutta. In Suo Motu Writ Petition (C) No.3 of 2023,
this Court’s attention was drawn to certain objectionable
observations made in the aforesaid judgement. While
dealing with the same, this court took note of the
systemic failure of the State to protect the victim,
resulting in her fate and wellbeing being ultimately tied
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2025.05.23
17:42:44 IST
Reason:
up with that of the accused. Accordingly, in this
judgement, we are dealing with the issue of sentencing of
Page 1 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
the accused arising out of the criminal appeal and the
Suo Motu Writ Petition. We are also dealing with the
issue of rehabilitation of the victim and her child.
2. The learned Special Judge appointed under the
Protection of Children from Sexual Offences Act, 2012
(for short, ‘the POCSO Act’) convicted the accused for the
offences punishable under Section 6 of the POCSO Act
and Sections 363 and 366 of the Indian Penal Code,
1860 (for short, ‘the IPC’). For the offence punishable
under Section 6 of the POCSO Act, the accused was
sentenced to undergo rigorous imprisonment for twenty
years and pay a fine of Rs.10,000/-. For the offences
punishable under Sections 363 and 366 of the IPC, the
accused was sentenced to undergo rigorous
imprisonment for four years and five years respectively
and was also ordered to pay a fine of Rs. 2,000/-and Rs.
5,000/- respectively. Though the learned Special Judge
under the POCSO Act came to the conclusion that the
accused was guilty of the offences punishable under
clause (n) of sub-section (2) and sub-section (3) of
Section 376 of the IPC, in view of the sentence imposed
for the offence punishable under Section 6 of the POCSO
Act, no separate punishment was imposed. The accused
preferred Criminal Appeal (DB) 14 of 2023 before the
Calcutta High Court against the conviction. The High
Page 2 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
Court by the Impugned Judgement dated 18th October
2023 purported to exercise its jurisdiction under Article
226 of the Constitution of India read with Section 482 of
the Code of Criminal Procedure, 1973 (for short, “the
CrPC”) to set aside the conviction of the accused for the
aforesaid offences.
3. This Court by a detailed judgement dated
th
20 August 2024, set aside the impugned judgment of
the High Court and restored the verdict of the learned
Special Court to the extent of the conviction of the
accused for the offences punishable under clause (n) of
sub-section 2 and sub-section (3) of Section 376 of the
IPC and Section 6 of the POCSO Act. This Court
confirmed the acquittal of the accused for the offences
punishable under Sections 363 and 366 of the IPC.
However, the sentencing was postponed for the reasons
recorded in the judgment. In paragraph 2 of the said
judgment, the basic facts of the case have been
mentioned and in paragraph 3, the findings recorded by
the High Court have been mentioned. Paragraphs 2 to 5
of the judgment are relevant which read thus:
“2. The victim girl was fourteen years
old at the time of the incident. The
victim’s mother lodged a First
th
Information Report (FIR) on 29 May
2018. The victim’s mother stated in
Page 3 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
her complaint that the victim, who was
her minor daughter, escaped from her
th
home at 5:30 p.m. on 20 May 2018
without informing anyone. On inquiry,
it was found that the accused enticed
her to leave her house. The accused
did so with the help of his two sisters.
The victim’s mother repeatedly visited
the house of the accused and
requested him to facilitate the return of
her daughter. However, the victim did
not come back. A female child was
born to the victim. Admittedly, the
accused is the biological father of the
child. There was a gross delay in the
investigation, and the accused was
th
arrested on 19 December 2021. The
th
chargesheet was filed on 27 January
2022 against the accused for the
offences for which he was convicted.
In addition, the accused was charged
with the offence punishable under
Section 9 of the Prohibition of Child
Marriage Act, 2006. The prosecution
examined seven witnesses. We may
note here that as the learned Special
Judge under the POCSO Act found
that there was no evidence of marriage
between the victim and the accused,
the charge under Section 9 of the 2006
Act was held as not substantiated.
Page 4 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
3. By the impugned judgment, the
High Court held that the offences
punishable under Sections 363 and
366 of the IPC were not made out, and
therefore, the High Court acquitted the
accused for the said two offences.
Considering the factual scenario that
the High Court noticed, it purported to
exercise its jurisdiction under Article
226 of the Constitution of India read
with Section 482 of the Code of
Criminal Procedure, 1973 (for short,
‘the Cr. PC’) to set aside the conviction
of the accused for the offences
punishable under Section 6 of the
POCSO Act and sub-sections 2(n) and
(3) of Section 376 of the IPC. The High
Court noted that the mother of the
victim had disowned her and therefore,
the victim was continuously residing
with the accused along with their
minor child.
4. The Suo Motu writ petition was
initiated based on the directions
issued by the Hon’ble Chief Justice of
India for challenging the impugned
judgment. The State Government has
preferred the criminal appeal to
challenge the order of acquittal.
5. Considering the nature of the
observations made by the High Court
and the findings recorded by it, this
Page 5 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
Court appointed Ms. Madhavi Divan
and Ms. Liz Mathew, the learned
senior counsel, as amicus curiae to
assist the Court. Both of them have
rendered valuable assistance to the
Court. Along with them, Ms. Nidhi
Khanna, Advocate-on-Record, has also
assisted the Court. We have heard
Mr.Huzefa Ahmadi, the learned senior
counsel appearing for the State
Government and the learned counsel
representing the accused and the
victim. The learned senior counsel for
the State Government has taken a fair
stand. The accused and the victim are
on the same page and want to
continue their cohabitation. ”
4. In paragraphs 15 and 15.1, this Court has dealt
with the objectionable portions of the impugned
judgment of the High Court. Thereafter, this Court also
dealt with the exercise of plenary powers of the High
Court under Section 482 of the CrPC to quash the order
of conviction. In paragraphs 23 and 23.1, this Court
held thus:
“23. There are various decisions of
this Court holding that the High Court
can exercise jurisdiction under Section
482 of the Cr.PC to quash a
prosecution on the grounds of
settlement or by consent. One such
Page 6 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
judgment is in the case of
Gian Singh
v. State of Punjab & Anr., (2012) 10
SCC 303 . Paragraph 58 of the said
decision reads thus:
“58. Where the High Court
quashes a criminal proceeding
having regard to the fact that the
dispute between the offender and
the victim has been settled
although the offences are not
compoundable, it does so as in its
opinion, continuation of criminal
proceedings will be an exercise in
futility and justice in the case
demands that the dispute between
the parties is put to an end and
peace is restored; securing the
ends of justice being the ultimate
guiding factor. No doubt, crimes
are acts which have harmful effect
on the public and consist in
wrongdoing that seriously
endangers and threatens the well-
being of the society and it is not
safe to leave the crime-doer only
because he and the victim have
settled the dispute amicably or that
the victim has been paid
compensation, yet certain crimes
have been made compoundable in
law, with or without the
permission of the court. In respect
Page 7 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
of serious offences like murder,
rape, dacoity, etc., or other
offences of mental depravity
under IPC or offences of moral
turpitude under special statutes,
like the Prevention of
Corruption Act or the offences
committed by public servants
while working in that capacity,
the settlement between the
offender and the victim can have
no legal sanction at all. However,
certain offences which
overwhelmingly and predominantly
bear civil flavour having arisen out
of civil, mercantile, commercial,
financial, partnership or such like
transactions or the offences arising
out of matrimony, particularly
relating to dowry, etc. or the family
dispute, where the wrong is
basically to the victim and the
offender and the victim have
settled all disputes between them
amicably, irrespective of the fact
that such offences have not been
made compoundable, the High
Court may within the framework of
its inherent power, quash the
criminal proceeding or criminal
complaint or FIR if it is satisfied
that on the face of such settlement,
there is hardly any likelihood of the
Page 8 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
offender being convicted and by not
quashing the criminal proceedings,
justice shall be casualty and ends
of justice shall be defeated. The
above list is illustrative and not
exhaustive. Each case will depend
on its own facts and no hard-and-
fast category can be prescribed. ”
(emphasis added)
23.1 Therefore, in view of the settled
position of law, in the facts of the case,
even if the accused and the victim (who
has now attained majority) were to
come out with a settlement, the High
Court could not have quashed the
prosecution. ”
4.1 In paragraphs 24 and 25, this Court highlighted the
helpless position in which the victim of the offences
under the POCSO Act was placed. Paragraphs 24 and
25 read thus:
“24. The situation in which the victim
was placed after the commission of the
offence needs a bit of elaboration. As
noted earlier, the victim left her house
on 20th May 2018, and her mother
filed a complaint on 29th May 2018.
On 1st June 2018, PW-5 (ASI Gopal
Chandra Saha) brought the victim from
the house of the accused to the police
station. After her medical examination
Page 9 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
was conducted, she was sent for safe
custody at Alor Disha Child Line at
Champahati. PW-2, mother of the
victim, without giving any particulars
stated that she got her daughter back
from Narendrapur Sanlaap home. She
claimed in the cross-examination that
the victim remained in her house for
one year and, later on, went back to the
house of the accused. She admitted
that she never went to the home of the
accused, not even to see her
grandchild. The victim’s parents
completely abandoned her, at least
from the year 2019.
25. Ms Madhavi Divan, the learned
amicus curiae , rightly emphasized that
no opportunity was made available to a
girl of fourteen or fifteen years of age to
make an informed choice to decide
whether to stay with the accused. She
did not get any support from her
parents and the State machinery when
she required it the most. As held by us
hereafter, the State machinery failed to
act according to the law to take care of
the victim. The situation in which she
was placed at that time was such that
she had no opportunity to make an
informed choice about her future. She
had no option but to seek shelter where
it was provided to her i.e. in the house
Page 10 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
of the accused. In any event, it is
doubtful whether she could have made
an informed choice at the age of
fourteen or fifteen. ”
5. From paragraphs 26 to 36, this Court has
elaborately dealt with the failure of the State to perform
its obligation to take care of the victim of the offence
under the POCSO Act who was only fourteen years old.
This Court referred to the constitutional obligation of the
State. This Court also held that the existing statutes
have enough provisions to address this kind of situation.
Though, under the existing law, the State could have
taken adequate care of the poor victim, it was not done.
Therefore, very elaborate conclusions were recorded by
referring to specific provisions of the POCSO Act and the
Juvenile Justice (Care and Protection of Children) Act,
2015 (for short, ‘the JJ Act’). Ultimately, in paragraphs
37 and 38, this Court has noted the effect of the failure
of the State, its machinery as well as the collective
failure of society at large. Paragraphs 37 and 38 read
thus:
“37. It is the responsibility of the State
to take care of helpless victims of such
heinous offences. Time and again, we
have held that the right to live a
dignified life is an integral part of the
fundamental right guaranteed under
Page 11 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
Article 21 of the Constitution of India.
Article 21 encompasses the right to
lead a healthy life. The minor child,
who is the victim of the offences under
the POCSO Act, is also deprived of the
fundamental right to live a dignified
and healthy life. The same is the case
of the child born to the victim as a
result of the offence. All the provisions
of the JJ Act regarding taking care of
such children and rehabilitating them
are consistent with Article 21 of the
Constitution of India. Therefore,
immediately after the knowledge of the
commission of a heinous offence under
the POCSO Act, the State, its agencies
and instrumentalities must step in and
render all possible aid to the victim
children, which will enable them to
lead a dignified life. The failure to do so
will amount to a violation of the
fundamental rights guaranteed to the
victim children under Article 21. The
police must strictly implement sub-
section (6) of Section 19 of the POCSO
Act. If that is not done, the victim
children are deprived of the benefits of
the welfare measures under the JJ Act.
Compliance with Section 19(6) is of
vital importance. Non-compliance
thereof will lead to a violation of Article
21.
Page 12 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
38. Unfortunately, in our society, due
to whatever reasons, we find that there
are cases and cases where the parents
of the victims of the offences under the
POSCO 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 of the offences as provided in
law. Even the child born to such a
victim needs to be taken care of in a
similar manner by the State. After the
victim attains the majority, the State
will have to ensure that the victim of
the offence can stand on his/her legs
and, at least, think of leading a
dignified life. That is precisely what
Section 46 of the JJ Act provides.
Sadly, in the present case, there is a
complete failure of the State machinery.
Nobody came to rescue the victim of
the offence, and thus, for her survival,
no option was left to her but to seek
shelter with the accused. ”
6. Paragraph 40, 40.1 and 41 discuss the issue of
rehabilitation of the victim and her child. The operative
portion of the judgment in paragraph 44 is relevant,
which reads thus:
“44. Hence, we pass the following
order:
Page 13 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
(a) The impugned judgment of the
High Court is set aside and the
judgment of the Special Court is
restored to the extent of the
conviction of the accused for the
offences punishable under sub-
sections (2)(n) and (3) of Section
376 of the IPC and Section 6 of the
POCSO Act. Accordingly, the
accused stands convicted. The
acquittal of the accused for the
offences punishable under Sections
363 and 366 of the IPC is
confirmed. The appeal is partly
allowed. The issue regarding
sentencing will be considered after
receiving the report of the
committee in terms of clause (h)
below.
(b) We direct the Government of
West Bengal to constitute a
committee of three experts,
including a clinical psychologist
and a social scientist. The State
Government may take the
assistance of NIMHANS or TISS for
constituting the committee. A
child welfare officer shall be
appointed to assist the committee
as its coordinator and secretary;
(c) The committee shall be formed
within three weeks from today;
Page 14 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
(d) Within one week from the date
of formation of the committee, the
State Government shall provide all
the material particulars/details of
the benefits which it is willing to
extend to the victim as stated in
paragraph 5 of the note submitted
on 9th May 2024 by the learned
senior counsel appearing for the
State;
(e) Thereafter, the committee shall
meet the victim of the offences at
such a place as it desires to
communicate what the State
Government is offering to her. The
Committee must also inform the
victim about the availability of the
benefits of the scheme of the
Government of India. The duty of
the committee shall be to help the
victim to make an informed choice
whether she wants to continue to
remain in the company of the
accused and his family or wants to
avail of the benefits offered by the
State Government. This exercise
will naturally require meetings
with the victim on multiple
occasions. In what manner this
task should be performed is left to
the committee to decide;
Page 15 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
(f) The committee members must
perform their duties very carefully
and sensitively while ensuring that
the victim does not develop a
feeling of insecurity. While doing
the exercise, the committee will
endeavour to carefully ascertain
the kind of support, if any, the
victim and her child are getting
from the accused and his family
members;
The State Government and its
(g)
officials shall render all possible
facilities and help to the committee
members;
(h) The coordinator of the
committee shall submit a report in
a sealed cover to this Court by
18th October 2024 through the
Advocate-on-Record for the State
Government. The report can be a
preliminary report or a final report.
The report should contain the
details of the interactions with the
victim and the opinion and
recommendations of the
committee. The committee is free
to give its opinion on the action
which would be in the best interest
of the victim and her child; and
Page 16 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
(i) We direct the Registry to
forward copies of this judgment to
the Secretaries of Law and/or
Justice Departments of all the
States and Union Territories. The
Secretaries shall convene meetings
of the Secretaries of the concerned
departments and other senior
officials. The object of holding
such meetings is to ensure that
appropriate directions are issued to
all concerned to strictly implement
the provisions of Section 19(6) of
the POCSO Act and the relevant
provisions of the JJ Act, which we
have elaborated above. The
State/Union Territories must
create machinery to do so. The
State/Union Territories shall also
assist the victims in getting the
benefits under the scheme of the
Government of India and the
scheme of NALSA, which we have
referred to above. In the meetings,
the issue of framing Rules by the
States to give effect to the
provisions of Section 46 of the JJ
Act, shall also be considered. The
Secretaries shall forward the
compliance reports to the
Secretary of the Ministry of Women
and Child Development,
Government of India, within a
Page 17 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
period of two months from today.
The Secretary of the Ministry of
Women and Child Development
shall compile the reports and
submit an exhaustive report before
this Court within three months
from today. A copy of this
judgment shall also be forwarded
to the Secretary to the Ministry of
Women and Child Development,
Government of India. ”
Broadly, there are three issues which we are
7.
considering. The first issue is of sentencing the accused.
The second issue is about the rehabilitation of the victim
and her child. The third issue is a wider issue about
adopting measures for adolescent wellbeing and child
protection which goes to the root cause of the problem in
our changing society.
8. As far as sentencing is concerned, we cannot deal
with the issue without understanding the reports of the
Committee appointed by this Court. There are two
reports of the Committee: preliminary report and final
report. This Court interacted with the members of the
rd
Committee and the victim on 3 April 2025. The order
rd
of this Court dated 3 April 2025 reads thus:
“ We have interacted with the following
members of the Committee of Experts:
Page 18 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
(1) Dr. Pekham Basu, Assistant
Professor, Centre for Equity and
Justice for Children and Families,
School of Social Work, Tata
Institute of Social Science, Mumbai
– Expert Member,
(2) Smt. Jayita Saha, Clinical
Psychologist, Pavlov Hospital &
COE, CNMCH, Kolkata, Health and
Family Welfare Department,
Government of West Bengal –
Expert Member and
(3) Mr. Sanjeeb Rakshit, District Social
Welfare Officer, South 24 Parganas
– Member Secretary.
At the outset, we must compliment the
role played by the three experts and
the assistance they have rendered to
the Court and to the learned senior
amicus curiae
counsel appointed as .
We have heard the victim.
We are not recording in detail what
actually transpired, but we are of the
view that the victim needs a financial
help. After the victim completes her
10th Board Examination, we will have
to explore the possibility of whether
any vocational training can be given to
her or whether part-time employment
can be extended to her.
Page 19 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
On this aspect, we will need the help of
the West Bengal State Legal Services
Authority. We, therefore, issue notice to
the Member Secretary of the West
Bengal State Legal Services Authority,
returnable on 1st May, 2025. To be
listed at 2.00 p.m.
We also request the Member Secretary
to interact with the learned senior
counsel appointed as amicus curiae
and also the learned counsel for the
State of West Bengal so that the
Member Secretary can be made aware
about the nature of help and
assistance required from the State
Legal Services Authority.
The Registry is directed to forward a
copy of this order directly to the
Member Secretary of the West Bengal
Legal Services Authority.
We request the Member Secretary to
remain present before the Court on the
returnable date through video
conference.
The learned senior counsel appearing
for the State of West Bengal was
present today. We request him to take
instructions from the officers of the
State in what manner the State can
extend the helping hand to the victim.
Page 20 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
We will consider the submissions of the
learned counsel on that day. The
learned counsel are free to file
supplementary note. The State can also
file its response well in advance. ”
9. The preliminary report of the Committee is dated
th
16 October 2024. The report recorded the victim’s
struggles while tackling the legal system for securing the
release of the accused. The report further noted that the
legal battle has resulted in the family suffering
emotionally and financially, and accordingly the
committee recommended financial assistance for the
child and educational and financial rehabilitation for the
victim.
10. This Court on 24th October 2024, perused the
preliminary report submitted by the Committee. Upon
examination, the Court ordered the Committee to inform
the victim about educational/ vocational training which
can be extended to her at the cost of the State
Government to ensure that she earns a better livelihood.
The State Government was also directed to take all
possible steps to provide good quality education to the
child of the victim. This court further ordered the State
Government to ensure that proper nutritious food is
made available to the child.
Page 21 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
11. The Committee submitted its final report on 28th
January 2025. The final report provides details of all the
interviews conducted by the Committee, including those
of the victim, the accused, their respective families,
teachers and management personnel at the school of the
victim, investigating police officers, personnel at the
welfare home—Sanlaap Sneha Home, and other relevant
stakeholders.
12. The final report highlights the inadequate,
inefficient implementation of the POCSO Act. In
particular, the final report emphasizes the “collective
failure of the systems that are there to protect a girl
child”. It states that the loopholes are glaring, and that
the elopement, the living in/marriage of the victim, the
birth of a child—all were preventable. The final report
specifically highlights:
a) the failure of the Child Protection Committees at
the village level;
b) the inadequate implementation of the State of
West Bengal’s “Kanyashree Prakalpa Scheme”;
the inaction of the designated Child Welfare
c)
Officer at the local police station;
d) lack of provision of free legal aid;
Page 22 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
e) lack of sufficient and effective counsellors from
both genders in schools and even welfare homes;
high frequency of elopements by children in class
f)
8 and above;
g) stigmatisation of girls in similar situations as the
adolescent victim in the present case;
h) irregularities and delays in the investigation of
such crimes;
i) inadequate accessibility to judicial fora and
corruption and financial exploitation by touts,
members of the Bar etc.; and
j) lack of awareness and sensitisation among family,
and public officials in respect of the POCSO Act
and the sexual, emotional, and mental well-being
of children.
13. The final report concludes that in this particular
case, it was not the legal crime which caused trauma on
the victim, rather it was the legal battle which ensued
consequent to the crime that is taking a toll on the
victim. In the light of this, the final report recommended
that it would be in the best interest of the victim and her
child that the family unit stays intact, so that the
Page 23 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
accused father may be able to participate in the child’s
upbringing. Further, the report also recommended
providing financial, legal and educational support to the
victim and her child.
SUBMISSIONS
14. Very detailed submissions were made by Ms.
Madhavi Divan and Ms. Liz Mathew, the learned senior
counsel appointed as amicus curiae . The learned amici
have submitted that the sentencing of the accused would
have to be examined in light of the findings in the final
report, as well as the interaction with the victim, which
has conclusively shown that the victim wishes to
continue residing with the accused, and has expressed
her fervent desire for preservation of his liberty.
The learned amici curiae have, therefore,
15.
recommended three alternatives in relation to sentencing
the accused, which are as under:
a) Firstly, learned amici submitted that this
Court can consider exercising its powers under
Article 142 to remit, reduce or suspend the
sentence. This court in
Shilpa Sailesh v. Varun
1
Sreenivasan delineated the contours of the power
under the said Article, stating that as long as
1 (2023) 14 SCC 231
Page 24 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
“complete justice” required by the “cause or matter”
is achieved without violating fundamental principles
of general or specific public policy, the exercise of the
power and discretion under Article 142(1) is valid
and as per the Constitution of India. The learned
amici submitted that, in the present case, the
minimum sentencing provisions under POCSO Act
must be considered in the light of the evolving
welfare interests of both the victim and her child.
The learned amici have reiterated that this Court has
exercised this power in similar cases of conviction
under the POCSO Act including in K. Dhandapani
2 3
v. State , Sankar v. State of Tamil Nadu and
4
.
Elumalai v. Inspector of Police
b) Secondly, the learned amici have submitted
that this court can consider remitting the sentence
of the accused by the State of West Bengal under
Section 432 CrPC (Section 473 BNSS). However, in
the facts of the present case the amicus curiae were
of the opinion that this Court ought to exercise its
jurisdiction under Article 142 to reduce the sentence
of the accused to the sentence already served in
order to do complete justice between the parties.
2
2022 SCC OnLine SC 1056
3 Curative Petition (Criminal) 3/2023
4 Crl. Appeal No. 674 of 2018
Page 25 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
c) Thirdly, the learned amici have submitted that
the power of High Court’s to quash ongoing criminal
proceedings under Section 482 of the CrPC needs to
5
be examined. In Gian Singh v. State of Punjab ,
this court has cautioned that such power may only
be exercised to secure the ends of justice or to
prevent abuse of the process of any court. The
learned amici have highlighted the different
approaches taken by High Courts. The Delhi High
6
Court in Ajay Kumar v. State (NCT of Delhi) and
7
the Madras High Court in Vijayalakshmi v. State
have interpreted the statement of objects and
reasons of the POCSO Act as not intending to
criminalize consensual romantic relationships
between adolescents. The Madras High Court, in
several cases has adopted a legal interpretation that
consensual acts do not fulfil the requirement of
‘assault’ in the offence of ‘penetrative sexual assault.’
Similarly, the Calcutta High Court in Ranjit
8
has held that
Rajbanshi v. State of West Bengal
the POCSO Act defines “penetration” as a unilateral
act by the accused, and therefore in cases of
consensual intercourse, the act of penetration may
5
(2012) 10 SCC 303
6
2022 SCC OnLine Del 3705
7 2021 SCC OnLine Mad 317
8 2021 SCC OnLine Cal 2470
Page 26 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
not solely be attributed to the accused. Various High
Courts have also considered the impact such
prosecution has on the victim and have proceeded to
quash the proceeding if pursuing the case would
harm the victim. Similarly, the impact of prosecution
on the accused has also been considered. In these
cases, the learned amici have submitted that it will
be pertinent to determine whether the victim has
given ‘informed consent’, which must be done by
interacting with the victim, considering compromise
memos and examining the statements given by the
victim under Sections 161 and 164 of the CrPC.
Further, in this light, the learned amici have
stressed on the need to identify relevant factors to be
considered by High Courts while quashing
proceedings under the POCSO Act, in order to
curtail inconsistent approaches towards the same.
Broadly, the learned amici in relation to sentencing
16.
of the accused have submitted that the underlying
rationale in the present case should be to prevent the
disruption of an existing family unit, mitigate further
hardship to the victim and her child/children, and to
balance strict statutory mandates with the principles of
proportionality and complete justice. The learned amici
contended that while the POCSO Act serves an essential
Page 27 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
purpose in protecting minors from sexual exploitation,
its rigid application in cases of adolescent relationships
can lead to outcomes that may not align with the best
interests of the prosecutrix and her dependents. In light
of this jurisprudence, this Court was requested to
consider adopting a similarly nuanced approach in the
present case to ensure that justice is served in both
letter and spirit.
17. The learned amici have also sought supplementary
directions to the effect that the facilities that have been
made available to the victim by the State Government be
continued till the child of the victim attains majority,
and the victim attains education till the level of
graduation, whichever is later. Further, learned amici
have sought a direction to the Child Welfare Committee
at the local level to apprise the victim of her rights as a
married woman, and the options available to her in the
unfortunate event of a marital discord.
18. In light of the experience gained in the present
case, the learned amici curiae have also sought broader
directions for ensuring that such cases can be prevented
or dealt with in a better manner in the future:
a) The first direction pertains to the overall
adolescent well-being and comprehensive sexuality
Page 28 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
education. The learned amici have drawn our
attention to various government and non-
governmental initiatives that have been introduced
to enhance adolescent wellbeing, provide access to
crucial health information, and ensure child
protection. These initiatives focus on emergency
assistance, digital education, peer-led awareness,
and community-driven outreach programs. Some
programs, such as Childline India, provide
immediate rescue and support services for children
in distress, while digital platforms like Saathiya
Salah and Hello Saheli aim to bridge the gap in
sexual and reproductive health education. Other
efforts, such as Project X, emphasize comprehensive
sexuality education through structured classroom
interventions. Despite these initiatives, the learned
amici have highlighted that the UNESCO, The
Journey Towards Comprehensive Sexuality
Education: Global Status Report (2021) points out
that in India, education policies on life-skills-based
HIV and sexuality education is at secondary
education-level only. In light of this, the learned
amici have advocated for comprehensive sex
education in India, stating that without systematic
policy reforms, improved teacher training, and a
Page 29 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
more inclusive curriculum, India will continue to
struggle in addressing rising adolescent health
issues, misinformation, and the stigma surrounding
sexual and reproductive health education.
b) The second direction sought for by the learned
amici relates to the implementation of a data
collection mechanism for improving institutional
accountability. The learned amici have submitted
that to ensure effective policy making, real-time
accountability, and targeted interventions, it is
crucial to establish a structured data collection
mechanism at the state level. The absence of
comprehensive, standardized data has often led to
fragmented policy implementation, making it
difficult to track progress and address gaps in
enforcement. By collecting real-time data on key
indicators—including sex education implementation,
counselling services, POCSO case tracking, and
child marriage monitoring—governments can
enhance transparency and responsiveness in
tackling these critical issues. Further, the learned
amici have submitted that integrating this data into
a real-time dashboard will provide a publicly
accessible, transparent mechanism for monitoring
Page 30 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
progress, holding institutions accountable, and
making informed policy decisions.
CONSIDERATION
19. The preliminary report of the Committee indicates
that in 2017, the victim met the accused through her
neighbour who happened to be the sister of the accused.
At that time, their ages were 13 and 25 years
respectively. It is claimed that over a period of time they
th
fell in love and on 20 May 2018, the victim left her
home. She married the accused at a temple. Within
th
nine days, on 29 May 2018, the victim’s mother lodged
a police complaint. As a result of registration of the FIR,
the police placed the victim in Narendrapur Sanlaap
home. She was there for a month, and thereafter, she
was sent back to her parents. She resumed her
education at school and was promoted to class 10. While
she was studying in class 10, she once again left her
parental home and started living with the accused.
Perhaps this period was very crucial in her life as she
felt stigmatised and humiliated, as recorded in the
preliminary report. She noticed that the entire village
was discussing her case. Her siblings were taunting her.
She was subjected to the vigilance of her mother, who
accompanied her to school and tuition classes. Given
Page 31 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
these circumstances, the victim might have felt
compelled to leave her home.
The victim continued to stay with the extended
20.
family of the accused, which consists of his parents,
uncle, aunts, his five brothers and one sister. In May
2021, the victim gave birth to a daughter. After her
delivery, she stayed with her parents for about two
weeks, and thereafter, she went back to the house of the
accused. When the daughter was seven months old, the
police arrested the accused. The Committee noted that
the arrest shattered both the victim and her daughter.
For days, her daughter cried due to the absence of her
father. The Committee recorded that the daughter
remains traumatised due to separation anxiety. As can
be seen from the report of the Committee, the two year
period when the accused was in custody, was the
toughest period for the victim. She had to run from
pillar to post to defend the accused. She spent large
amounts by way of payment of fees to lawyers for his
release. The figures of the amount she spent as noted in
the final report of the Committee are startling. At
different stages, she paid a total amount of Rs. 40,000/-
to the advocates. In addition, she claims to have paid a
sum of Rs. 10,000/- to an advocate “for winning the
case”. She spent a sum of Rs. 20,000/- to get copies of
Page 32 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
the chargesheet and Rs. 7,000/- for getting duplicate
copies of the court papers. Shockingly, she paid Rs.
18,000/- to a tout who promised to get bail for her
husband. Thus, she ended up spending more than Rs. 2
lakhs by incurring debt for defending the accused. She
has borrowed a sum of Rs. 2 lakhs and now, she is in a
debt trap. In fact, the Committee records that the
indebtedness has become vicious. The only redeeming
feature is that during the period of imprisonment of the
accused, her marital family took care of her and her
daughter.
21. Now, we come to the economic condition of the
victim and the accused. The family of the accused is
very poor. At present, the victim, the accused and her
daughter are staying in a temporary shelter enclosed by
brick walls, but the roof is of tarpaulin. This house has
no door. The accused is uneducated and is working as a
daily wage labourer. Apparently, he is working very
hard. It is noted by the Committee that both the victim
and her husband are very keen on ensuring that their
daughter gets education. They are taking precautions to
ensure that they do not have another child. Now, there
is improvement in the relationship between the victim
and her parents. The victim’s parents looked after her
when she was unwell.
Page 33 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
22. The final report of the Committee is more elaborate.
It describes the huge burden placed on the victim in
dealing with her family’s responsibilities. The final
report records that the economic status of the victim’s
family is marginally better than that of her husband.
The Committee has noted that the relationship of the
victim with her husband follows the triangular theory of
love, which states that intimacy, passion and
commitment are the main criteria for consummate love.
Initially, passion and intimacy may have taken the center
stage, but now, the Committee notes that without any
coercion from her husband, the victim is deeply
committed to him. The Committee notes that now the
victim is different. She is ably looking after her
responsibilities as a wife and mother. It also notes the
victim’s apprehension to save her husband from
punishment. The figures of the money spent by her,
which we have quoted earlier, were only in relation to the
trial stage. The final report records that she has almost
spent Rs.1,35,000/-. The figures stated make it obvious
that she has been exploited. This is evident from the
fact that she had to pay Rs.60,000/- for grant of bail,
Rs.25,000/- for securing acquittal, Rs.15,000/- for filing
a case in this Court and Rs. 25,000/- towards air fare, to
enable her husband’s advocate to appear before this
Page 34 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
Court. Now, the victim is showing signs of maturity.
She actively engages with adolescent girls in the area
and encourages them to study and think rationally
about relationships.
23. The facts of this case are an eye opener for
everyone. It highlights the lacuna in our legal system.
The final report concludes that though the incident was
seen as a crime in law, the victim did not accept it as
one. The Committee records that it was not the legal
crime that caused any trauma to the victim, but rather,
it was the consequences that followed, which took a toll
on her. What she had to face as a consequence was the
police, the legal system and the constant battle to save
the accused from punishment. At the same time, she
took care of her daughter to the best of her abilities,
notwithstanding the huge financial burden she carried.
In fact, the final conclusion in the report is an eye
opener. The relevant part of the final report reads thus:
“ In conclusion, a heinous crime causes
trauma in the psyche of the victim. In
this case, the law saw it as a crime, the
victim did not. Hence, the legal crime
did not cause any trauma on this
particular victim. It was the
consequences thereafter – the police
personnel, the legal system, the battle
to save her husband and do the best
Page 35 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
for her daughter while having a
financial burden, which is taking its
toll on her. A young woman, who
refuses to be called a “Victim”, fighting
for her husband needs all the support
that can be made available. It would
be in the best interest of the child if the
family structure can be restored. ”
What troubles us is the issue of sentencing. The
24.
reports of the Committee stare at our faces. Though the
victim did not treat the incident as a heinous crime, she
suffered because of it. This was because at an earlier
stage, the victim could not make an informed choice due
to the shortcomings of our society, our legal system and
her family. In fact, she did not get any opportunity to
make informed choice. The society judged her, the legal
system failed her, and her own family abandoned her.
Now, she is at a stage where she is desperate to save her
husband. Now, she is emotionally committed to the
accused and has become very possessive of her small
family.
25. After having read the reports and having interacted
with the Committee as well as the victim, we are of the
view that if we send the accused to jail, the worst
sufferer will be the victim herself. As compared to the
situation in 2018, she is better placed today. Now she is
comfortable with her small family. She along with the
Page 36 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
accused, is concentrating on their daughter and they
want to ensure that she gets quality education. At the
same time, as recorded in the final report, the victim is
attending school and is desperate to complete her school
education. Though the State has offered to enroll her in
some vocational course, she is keen on completing her
education, at least up to graduation.
In law, we have no option but to sentence the
26.
accused and send him to jail for undergoing the
minimum punishment prescribed by the Statute.
However, in this case, the society, the family of the victim
and the legal system have done enough injustice to the
victim. She has been subjected to enough trauma and
agony. We do not want to add to the injustice done to
the victim by sending her husband to jail. We as
Judges, cannot shut our eyes to these harsh realities.
Now, at this stage, in order to do real justice to the
victim, the only option left before us is to ensure that the
accused is not separated from the victim. The State and
the society must ensure that the family is rehabilitated
till the family settles down in all respects.
27. Ultimately, this Court is bestowed with
extraordinary jurisdiction under Article 142 for the sole
object of ensuring that the highest Court of the land is in
Page 37 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
a position to do substantial justice in its truest sense.
In the context of this situation, sadly, true justice lies in
not sentencing the accused to undergo imprisonment.
This case is not going to be a precedent and should not
be a precedent. This case is an illustration of the
complete failure of our society and our legal system. All
that the system can do for the victim now, is to help her
fulfil her desire of completing her education, settling
down in life, providing a better education to her daughter
and ensuring overall better living conditions for her
family.
28. This year we have completed 75 years of the
Constitution on 26th January. The Constitution
contemplates the State to be a welfare state. The
Constitution guaranteed social and economic justice to
all the citizens. In this case, there is a failure to provide
both social and economic justice to the victim. The facts
of the case indicate failure of the concept of welfare state.
To remedy the situation in this case, it is the obligation
of the State Government to act as the true guardian of
the victim and her child and ensure that they settle
down in life and lead a happy, healthy and constructive
life ahead.
Page 38 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
29. In furtherance of the aforementioned, this Court by
order dated 24th October 2024 directed the State of West
Bengal to extend educational facilities and ensure the
provision of proper and nutritious food for the child of
rd
the victim. Furthermore, by order dated 3 April 2025,
this Court directed the State to look into the feasibility of
imparting vocational training or offering part-time
th
employment to the victim, upon completion of her 10
Board Examination. In compliance with the aforesaid
orders, the State has taken the following steps:
a) The victim has been offered enrollment under
various welfare schemes aimed at ensuring better
nutrition and education for herself and her child
vide Memo No. 1806/SWD(S24P) dated 18.11.2024.
b) As per the desire of the victim, she has been
admitted to Bhadrapara Gilarchat High School on
31st December 2024 and is currently studying in the
10th standard.
c) The child of the victim has been enrolled at
the local Anganwadi Centre and is receiving cooked
food under the Supplementary Nutrition Programme
of the Integrated Child Development Services.
Page 39 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
d) The child of the victim has been enrolled
under the Sponsorship Programme of Mission
Vatsalya with effect from January 2025, vide Order
th
dated 17 January 2025. Under the said scheme, an
amount of Rs. 4,000/- is transferred to the
beneficiary's account in the first week of every
month until the child attains the age of 18 years.
The State has further submitted that since the victim
has expressed her desire to complete her graduation,
following the successful completion of her Board
Examination, and subject to her consent, appropriate
arrangements can be made to enroll the victim in a
vocational training course of her choice at a suitable
institution.
30. The learned senior counsel appointed as amicus
curiae have come out with very important suggestions
which we have highlighted in the earlier part of this
judgement. This Court cannot leave this case by simply
making an attempt to take care of the family of the
victim. This Court will have to carry it further by taking
forward the suggestions of the learned amici curiae . For
carrying forward the suggestion of the learned amici , we
propose to implead the Union of India through the
Page 40 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
Ministry of Women and Child Development, so that more
effective orders can be passed.
Hence, we pass the following order:
31.
a) We exercise our extraordinary jurisdiction
under Article 142 of the Constitution of India and
hold that though the accused stands convicted, he
will not undergo sentence for the reasons stated
earlier;
b) We direct the State to take following
measures:
i) To act as a true guardian of the victim
and her child;
ii) To provide a better shelter to the victim
and her family within a period of few
months from today;
iii) To bear the entire expenditure of the
th
education of the victim till X standard
examination and if she desires to take up
education for a degree course, till the
completion of degree course. After she
th
passes her X standard examination, the
Page 41 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
State can offer her vocational training,
obviously, at the cost of the State;
iv) To bear the entire expenditure of the
th
education of the child up to X standard
and ensuring that she is educated in a
very good school in the vicinity of the
place of residence of the victim; and
v) To endeavour to take the assistance of
NGOs or public-spirited citizens for the
purpose of securing the debts incurred by
the victim as a one-time measure.
c) We direct the State to file compliance report
giving details of the implementation of the directions
contained in clause (b) above. The first compliance
th
report shall be filed by 15 July 2025. Thereafter,
compliance reports shall be filed after the interval of
every six months. The first compliance report will be
th
considered on 25 July 2025. We direct the Registry
th
to list the case on 25 July 2025.
d) Issue notice to the Union of India through the
Secretary of the Ministry of Women and Child
th
Development. The notice is made returnable on 25
th
July 2025. A copy of the judgement dated 20
Page 42 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
August 2024 and this judgement shall accompany
notice;
Immediately on service of notice, the Secretary
e)
of the Ministry of Women and Child Development
shall appoint a Committee of experts to deal with
the suggestions of the learned amici curiae . Senior
officers of the State shall be a part of the Committee.
If necessary, the Committee can also consult the
learned senior counsel appointed as amici curiae .
Immediately on service of notice, the Secretary shall
constitute a Committee. The members of the
Committee constituted by this Court shall be
permanent invitees to the said Committee; and
f) The Committee will submit a detailed report
before the returnable date to this Court. To consider
the implementation of the suggestions of the learned
amici curiae based on the said report, this Court will
pass further directions from time to time;
32. We were immensely benefitted by the reports of the
Committee appointed by this Court. We must
acknowledge the contribution of the Committee
members. We record our appreciation for the service
rendered by Ms.Madhavi Divan and Ms.Liz Mathew, the
learned amici curiae . We must also record that Shri
Page 43 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
Huzefa Ahmadi, the learned senior counsel appearing on
behalf of the State, has ably assisted the Court as the
Officer of the Court.
……………………..J.
(Abhay S. Oka)
……………………..J.
(Ujjal Bhuyan)
New Delhi;
May 23, 2025.
Page 44 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL/APPELLATE JURISDICTION
SUO MOTU WRIT PETITION (C) NO. 3 OF 2023
IN RE: RIGHT TO PRIVACY OF ADOLESCENTS
with
CRIMINAL APPEAL NO.1451 OF 2024
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. Criminal Appeal No.1451 of 2024 has been
preferred by the State of West Bengal, being aggrieved by
th
the judgment and order dated 18 October 2023, passed
by a Division Bench of the High Court of Judicature at
Calcutta. In Suo Motu Writ Petition (C) No.3 of 2023,
this Court’s attention was drawn to certain objectionable
observations made in the aforesaid judgement. While
dealing with the same, this court took note of the
systemic failure of the State to protect the victim,
resulting in her fate and wellbeing being ultimately tied
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2025.05.23
17:42:44 IST
Reason:
up with that of the accused. Accordingly, in this
judgement, we are dealing with the issue of sentencing of
Page 1 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
the accused arising out of the criminal appeal and the
Suo Motu Writ Petition. We are also dealing with the
issue of rehabilitation of the victim and her child.
2. The learned Special Judge appointed under the
Protection of Children from Sexual Offences Act, 2012
(for short, ‘the POCSO Act’) convicted the accused for the
offences punishable under Section 6 of the POCSO Act
and Sections 363 and 366 of the Indian Penal Code,
1860 (for short, ‘the IPC’). For the offence punishable
under Section 6 of the POCSO Act, the accused was
sentenced to undergo rigorous imprisonment for twenty
years and pay a fine of Rs.10,000/-. For the offences
punishable under Sections 363 and 366 of the IPC, the
accused was sentenced to undergo rigorous
imprisonment for four years and five years respectively
and was also ordered to pay a fine of Rs. 2,000/-and Rs.
5,000/- respectively. Though the learned Special Judge
under the POCSO Act came to the conclusion that the
accused was guilty of the offences punishable under
clause (n) of sub-section (2) and sub-section (3) of
Section 376 of the IPC, in view of the sentence imposed
for the offence punishable under Section 6 of the POCSO
Act, no separate punishment was imposed. The accused
preferred Criminal Appeal (DB) 14 of 2023 before the
Calcutta High Court against the conviction. The High
Page 2 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
Court by the Impugned Judgement dated 18th October
2023 purported to exercise its jurisdiction under Article
226 of the Constitution of India read with Section 482 of
the Code of Criminal Procedure, 1973 (for short, “the
CrPC”) to set aside the conviction of the accused for the
aforesaid offences.
3. This Court by a detailed judgement dated
th
20 August 2024, set aside the impugned judgment of
the High Court and restored the verdict of the learned
Special Court to the extent of the conviction of the
accused for the offences punishable under clause (n) of
sub-section 2 and sub-section (3) of Section 376 of the
IPC and Section 6 of the POCSO Act. This Court
confirmed the acquittal of the accused for the offences
punishable under Sections 363 and 366 of the IPC.
However, the sentencing was postponed for the reasons
recorded in the judgment. In paragraph 2 of the said
judgment, the basic facts of the case have been
mentioned and in paragraph 3, the findings recorded by
the High Court have been mentioned. Paragraphs 2 to 5
of the judgment are relevant which read thus:
“2. The victim girl was fourteen years
old at the time of the incident. The
victim’s mother lodged a First
th
Information Report (FIR) on 29 May
2018. The victim’s mother stated in
Page 3 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
her complaint that the victim, who was
her minor daughter, escaped from her
th
home at 5:30 p.m. on 20 May 2018
without informing anyone. On inquiry,
it was found that the accused enticed
her to leave her house. The accused
did so with the help of his two sisters.
The victim’s mother repeatedly visited
the house of the accused and
requested him to facilitate the return of
her daughter. However, the victim did
not come back. A female child was
born to the victim. Admittedly, the
accused is the biological father of the
child. There was a gross delay in the
investigation, and the accused was
th
arrested on 19 December 2021. The
th
chargesheet was filed on 27 January
2022 against the accused for the
offences for which he was convicted.
In addition, the accused was charged
with the offence punishable under
Section 9 of the Prohibition of Child
Marriage Act, 2006. The prosecution
examined seven witnesses. We may
note here that as the learned Special
Judge under the POCSO Act found
that there was no evidence of marriage
between the victim and the accused,
the charge under Section 9 of the 2006
Act was held as not substantiated.
Page 4 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
3. By the impugned judgment, the
High Court held that the offences
punishable under Sections 363 and
366 of the IPC were not made out, and
therefore, the High Court acquitted the
accused for the said two offences.
Considering the factual scenario that
the High Court noticed, it purported to
exercise its jurisdiction under Article
226 of the Constitution of India read
with Section 482 of the Code of
Criminal Procedure, 1973 (for short,
‘the Cr. PC’) to set aside the conviction
of the accused for the offences
punishable under Section 6 of the
POCSO Act and sub-sections 2(n) and
(3) of Section 376 of the IPC. The High
Court noted that the mother of the
victim had disowned her and therefore,
the victim was continuously residing
with the accused along with their
minor child.
4. The Suo Motu writ petition was
initiated based on the directions
issued by the Hon’ble Chief Justice of
India for challenging the impugned
judgment. The State Government has
preferred the criminal appeal to
challenge the order of acquittal.
5. Considering the nature of the
observations made by the High Court
and the findings recorded by it, this
Page 5 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
Court appointed Ms. Madhavi Divan
and Ms. Liz Mathew, the learned
senior counsel, as amicus curiae to
assist the Court. Both of them have
rendered valuable assistance to the
Court. Along with them, Ms. Nidhi
Khanna, Advocate-on-Record, has also
assisted the Court. We have heard
Mr.Huzefa Ahmadi, the learned senior
counsel appearing for the State
Government and the learned counsel
representing the accused and the
victim. The learned senior counsel for
the State Government has taken a fair
stand. The accused and the victim are
on the same page and want to
continue their cohabitation. ”
4. In paragraphs 15 and 15.1, this Court has dealt
with the objectionable portions of the impugned
judgment of the High Court. Thereafter, this Court also
dealt with the exercise of plenary powers of the High
Court under Section 482 of the CrPC to quash the order
of conviction. In paragraphs 23 and 23.1, this Court
held thus:
“23. There are various decisions of
this Court holding that the High Court
can exercise jurisdiction under Section
482 of the Cr.PC to quash a
prosecution on the grounds of
settlement or by consent. One such
Page 6 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
judgment is in the case of
Gian Singh
v. State of Punjab & Anr., (2012) 10
SCC 303 . Paragraph 58 of the said
decision reads thus:
“58. Where the High Court
quashes a criminal proceeding
having regard to the fact that the
dispute between the offender and
the victim has been settled
although the offences are not
compoundable, it does so as in its
opinion, continuation of criminal
proceedings will be an exercise in
futility and justice in the case
demands that the dispute between
the parties is put to an end and
peace is restored; securing the
ends of justice being the ultimate
guiding factor. No doubt, crimes
are acts which have harmful effect
on the public and consist in
wrongdoing that seriously
endangers and threatens the well-
being of the society and it is not
safe to leave the crime-doer only
because he and the victim have
settled the dispute amicably or that
the victim has been paid
compensation, yet certain crimes
have been made compoundable in
law, with or without the
permission of the court. In respect
Page 7 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
of serious offences like murder,
rape, dacoity, etc., or other
offences of mental depravity
under IPC or offences of moral
turpitude under special statutes,
like the Prevention of
Corruption Act or the offences
committed by public servants
while working in that capacity,
the settlement between the
offender and the victim can have
no legal sanction at all. However,
certain offences which
overwhelmingly and predominantly
bear civil flavour having arisen out
of civil, mercantile, commercial,
financial, partnership or such like
transactions or the offences arising
out of matrimony, particularly
relating to dowry, etc. or the family
dispute, where the wrong is
basically to the victim and the
offender and the victim have
settled all disputes between them
amicably, irrespective of the fact
that such offences have not been
made compoundable, the High
Court may within the framework of
its inherent power, quash the
criminal proceeding or criminal
complaint or FIR if it is satisfied
that on the face of such settlement,
there is hardly any likelihood of the
Page 8 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
offender being convicted and by not
quashing the criminal proceedings,
justice shall be casualty and ends
of justice shall be defeated. The
above list is illustrative and not
exhaustive. Each case will depend
on its own facts and no hard-and-
fast category can be prescribed. ”
(emphasis added)
23.1 Therefore, in view of the settled
position of law, in the facts of the case,
even if the accused and the victim (who
has now attained majority) were to
come out with a settlement, the High
Court could not have quashed the
prosecution. ”
4.1 In paragraphs 24 and 25, this Court highlighted the
helpless position in which the victim of the offences
under the POCSO Act was placed. Paragraphs 24 and
25 read thus:
“24. The situation in which the victim
was placed after the commission of the
offence needs a bit of elaboration. As
noted earlier, the victim left her house
on 20th May 2018, and her mother
filed a complaint on 29th May 2018.
On 1st June 2018, PW-5 (ASI Gopal
Chandra Saha) brought the victim from
the house of the accused to the police
station. After her medical examination
Page 9 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
was conducted, she was sent for safe
custody at Alor Disha Child Line at
Champahati. PW-2, mother of the
victim, without giving any particulars
stated that she got her daughter back
from Narendrapur Sanlaap home. She
claimed in the cross-examination that
the victim remained in her house for
one year and, later on, went back to the
house of the accused. She admitted
that she never went to the home of the
accused, not even to see her
grandchild. The victim’s parents
completely abandoned her, at least
from the year 2019.
25. Ms Madhavi Divan, the learned
amicus curiae , rightly emphasized that
no opportunity was made available to a
girl of fourteen or fifteen years of age to
make an informed choice to decide
whether to stay with the accused. She
did not get any support from her
parents and the State machinery when
she required it the most. As held by us
hereafter, the State machinery failed to
act according to the law to take care of
the victim. The situation in which she
was placed at that time was such that
she had no opportunity to make an
informed choice about her future. She
had no option but to seek shelter where
it was provided to her i.e. in the house
Page 10 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
of the accused. In any event, it is
doubtful whether she could have made
an informed choice at the age of
fourteen or fifteen. ”
5. From paragraphs 26 to 36, this Court has
elaborately dealt with the failure of the State to perform
its obligation to take care of the victim of the offence
under the POCSO Act who was only fourteen years old.
This Court referred to the constitutional obligation of the
State. This Court also held that the existing statutes
have enough provisions to address this kind of situation.
Though, under the existing law, the State could have
taken adequate care of the poor victim, it was not done.
Therefore, very elaborate conclusions were recorded by
referring to specific provisions of the POCSO Act and the
Juvenile Justice (Care and Protection of Children) Act,
2015 (for short, ‘the JJ Act’). Ultimately, in paragraphs
37 and 38, this Court has noted the effect of the failure
of the State, its machinery as well as the collective
failure of society at large. Paragraphs 37 and 38 read
thus:
“37. It is the responsibility of the State
to take care of helpless victims of such
heinous offences. Time and again, we
have held that the right to live a
dignified life is an integral part of the
fundamental right guaranteed under
Page 11 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
Article 21 of the Constitution of India.
Article 21 encompasses the right to
lead a healthy life. The minor child,
who is the victim of the offences under
the POCSO Act, is also deprived of the
fundamental right to live a dignified
and healthy life. The same is the case
of the child born to the victim as a
result of the offence. All the provisions
of the JJ Act regarding taking care of
such children and rehabilitating them
are consistent with Article 21 of the
Constitution of India. Therefore,
immediately after the knowledge of the
commission of a heinous offence under
the POCSO Act, the State, its agencies
and instrumentalities must step in and
render all possible aid to the victim
children, which will enable them to
lead a dignified life. The failure to do so
will amount to a violation of the
fundamental rights guaranteed to the
victim children under Article 21. The
police must strictly implement sub-
section (6) of Section 19 of the POCSO
Act. If that is not done, the victim
children are deprived of the benefits of
the welfare measures under the JJ Act.
Compliance with Section 19(6) is of
vital importance. Non-compliance
thereof will lead to a violation of Article
21.
Page 12 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
38. Unfortunately, in our society, due
to whatever reasons, we find that there
are cases and cases where the parents
of the victims of the offences under the
POSCO 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 of the offences as provided in
law. Even the child born to such a
victim needs to be taken care of in a
similar manner by the State. After the
victim attains the majority, the State
will have to ensure that the victim of
the offence can stand on his/her legs
and, at least, think of leading a
dignified life. That is precisely what
Section 46 of the JJ Act provides.
Sadly, in the present case, there is a
complete failure of the State machinery.
Nobody came to rescue the victim of
the offence, and thus, for her survival,
no option was left to her but to seek
shelter with the accused. ”
6. Paragraph 40, 40.1 and 41 discuss the issue of
rehabilitation of the victim and her child. The operative
portion of the judgment in paragraph 44 is relevant,
which reads thus:
“44. Hence, we pass the following
order:
Page 13 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
(a) The impugned judgment of the
High Court is set aside and the
judgment of the Special Court is
restored to the extent of the
conviction of the accused for the
offences punishable under sub-
sections (2)(n) and (3) of Section
376 of the IPC and Section 6 of the
POCSO Act. Accordingly, the
accused stands convicted. The
acquittal of the accused for the
offences punishable under Sections
363 and 366 of the IPC is
confirmed. The appeal is partly
allowed. The issue regarding
sentencing will be considered after
receiving the report of the
committee in terms of clause (h)
below.
(b) We direct the Government of
West Bengal to constitute a
committee of three experts,
including a clinical psychologist
and a social scientist. The State
Government may take the
assistance of NIMHANS or TISS for
constituting the committee. A
child welfare officer shall be
appointed to assist the committee
as its coordinator and secretary;
(c) The committee shall be formed
within three weeks from today;
Page 14 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
(d) Within one week from the date
of formation of the committee, the
State Government shall provide all
the material particulars/details of
the benefits which it is willing to
extend to the victim as stated in
paragraph 5 of the note submitted
on 9th May 2024 by the learned
senior counsel appearing for the
State;
(e) Thereafter, the committee shall
meet the victim of the offences at
such a place as it desires to
communicate what the State
Government is offering to her. The
Committee must also inform the
victim about the availability of the
benefits of the scheme of the
Government of India. The duty of
the committee shall be to help the
victim to make an informed choice
whether she wants to continue to
remain in the company of the
accused and his family or wants to
avail of the benefits offered by the
State Government. This exercise
will naturally require meetings
with the victim on multiple
occasions. In what manner this
task should be performed is left to
the committee to decide;
Page 15 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
(f) The committee members must
perform their duties very carefully
and sensitively while ensuring that
the victim does not develop a
feeling of insecurity. While doing
the exercise, the committee will
endeavour to carefully ascertain
the kind of support, if any, the
victim and her child are getting
from the accused and his family
members;
The State Government and its
(g)
officials shall render all possible
facilities and help to the committee
members;
(h) The coordinator of the
committee shall submit a report in
a sealed cover to this Court by
18th October 2024 through the
Advocate-on-Record for the State
Government. The report can be a
preliminary report or a final report.
The report should contain the
details of the interactions with the
victim and the opinion and
recommendations of the
committee. The committee is free
to give its opinion on the action
which would be in the best interest
of the victim and her child; and
Page 16 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
(i) We direct the Registry to
forward copies of this judgment to
the Secretaries of Law and/or
Justice Departments of all the
States and Union Territories. The
Secretaries shall convene meetings
of the Secretaries of the concerned
departments and other senior
officials. The object of holding
such meetings is to ensure that
appropriate directions are issued to
all concerned to strictly implement
the provisions of Section 19(6) of
the POCSO Act and the relevant
provisions of the JJ Act, which we
have elaborated above. The
State/Union Territories must
create machinery to do so. The
State/Union Territories shall also
assist the victims in getting the
benefits under the scheme of the
Government of India and the
scheme of NALSA, which we have
referred to above. In the meetings,
the issue of framing Rules by the
States to give effect to the
provisions of Section 46 of the JJ
Act, shall also be considered. The
Secretaries shall forward the
compliance reports to the
Secretary of the Ministry of Women
and Child Development,
Government of India, within a
Page 17 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
period of two months from today.
The Secretary of the Ministry of
Women and Child Development
shall compile the reports and
submit an exhaustive report before
this Court within three months
from today. A copy of this
judgment shall also be forwarded
to the Secretary to the Ministry of
Women and Child Development,
Government of India. ”
Broadly, there are three issues which we are
7.
considering. The first issue is of sentencing the accused.
The second issue is about the rehabilitation of the victim
and her child. The third issue is a wider issue about
adopting measures for adolescent wellbeing and child
protection which goes to the root cause of the problem in
our changing society.
8. As far as sentencing is concerned, we cannot deal
with the issue without understanding the reports of the
Committee appointed by this Court. There are two
reports of the Committee: preliminary report and final
report. This Court interacted with the members of the
rd
Committee and the victim on 3 April 2025. The order
rd
of this Court dated 3 April 2025 reads thus:
“ We have interacted with the following
members of the Committee of Experts:
Page 18 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
(1) Dr. Pekham Basu, Assistant
Professor, Centre for Equity and
Justice for Children and Families,
School of Social Work, Tata
Institute of Social Science, Mumbai
– Expert Member,
(2) Smt. Jayita Saha, Clinical
Psychologist, Pavlov Hospital &
COE, CNMCH, Kolkata, Health and
Family Welfare Department,
Government of West Bengal –
Expert Member and
(3) Mr. Sanjeeb Rakshit, District Social
Welfare Officer, South 24 Parganas
– Member Secretary.
At the outset, we must compliment the
role played by the three experts and
the assistance they have rendered to
the Court and to the learned senior
amicus curiae
counsel appointed as .
We have heard the victim.
We are not recording in detail what
actually transpired, but we are of the
view that the victim needs a financial
help. After the victim completes her
10th Board Examination, we will have
to explore the possibility of whether
any vocational training can be given to
her or whether part-time employment
can be extended to her.
Page 19 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
On this aspect, we will need the help of
the West Bengal State Legal Services
Authority. We, therefore, issue notice to
the Member Secretary of the West
Bengal State Legal Services Authority,
returnable on 1st May, 2025. To be
listed at 2.00 p.m.
We also request the Member Secretary
to interact with the learned senior
counsel appointed as amicus curiae
and also the learned counsel for the
State of West Bengal so that the
Member Secretary can be made aware
about the nature of help and
assistance required from the State
Legal Services Authority.
The Registry is directed to forward a
copy of this order directly to the
Member Secretary of the West Bengal
Legal Services Authority.
We request the Member Secretary to
remain present before the Court on the
returnable date through video
conference.
The learned senior counsel appearing
for the State of West Bengal was
present today. We request him to take
instructions from the officers of the
State in what manner the State can
extend the helping hand to the victim.
Page 20 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
We will consider the submissions of the
learned counsel on that day. The
learned counsel are free to file
supplementary note. The State can also
file its response well in advance. ”
9. The preliminary report of the Committee is dated
th
16 October 2024. The report recorded the victim’s
struggles while tackling the legal system for securing the
release of the accused. The report further noted that the
legal battle has resulted in the family suffering
emotionally and financially, and accordingly the
committee recommended financial assistance for the
child and educational and financial rehabilitation for the
victim.
10. This Court on 24th October 2024, perused the
preliminary report submitted by the Committee. Upon
examination, the Court ordered the Committee to inform
the victim about educational/ vocational training which
can be extended to her at the cost of the State
Government to ensure that she earns a better livelihood.
The State Government was also directed to take all
possible steps to provide good quality education to the
child of the victim. This court further ordered the State
Government to ensure that proper nutritious food is
made available to the child.
Page 21 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
11. The Committee submitted its final report on 28th
January 2025. The final report provides details of all the
interviews conducted by the Committee, including those
of the victim, the accused, their respective families,
teachers and management personnel at the school of the
victim, investigating police officers, personnel at the
welfare home—Sanlaap Sneha Home, and other relevant
stakeholders.
12. The final report highlights the inadequate,
inefficient implementation of the POCSO Act. In
particular, the final report emphasizes the “collective
failure of the systems that are there to protect a girl
child”. It states that the loopholes are glaring, and that
the elopement, the living in/marriage of the victim, the
birth of a child—all were preventable. The final report
specifically highlights:
a) the failure of the Child Protection Committees at
the village level;
b) the inadequate implementation of the State of
West Bengal’s “Kanyashree Prakalpa Scheme”;
the inaction of the designated Child Welfare
c)
Officer at the local police station;
d) lack of provision of free legal aid;
Page 22 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
e) lack of sufficient and effective counsellors from
both genders in schools and even welfare homes;
high frequency of elopements by children in class
f)
8 and above;
g) stigmatisation of girls in similar situations as the
adolescent victim in the present case;
h) irregularities and delays in the investigation of
such crimes;
i) inadequate accessibility to judicial fora and
corruption and financial exploitation by touts,
members of the Bar etc.; and
j) lack of awareness and sensitisation among family,
and public officials in respect of the POCSO Act
and the sexual, emotional, and mental well-being
of children.
13. The final report concludes that in this particular
case, it was not the legal crime which caused trauma on
the victim, rather it was the legal battle which ensued
consequent to the crime that is taking a toll on the
victim. In the light of this, the final report recommended
that it would be in the best interest of the victim and her
child that the family unit stays intact, so that the
Page 23 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
accused father may be able to participate in the child’s
upbringing. Further, the report also recommended
providing financial, legal and educational support to the
victim and her child.
SUBMISSIONS
14. Very detailed submissions were made by Ms.
Madhavi Divan and Ms. Liz Mathew, the learned senior
counsel appointed as amicus curiae . The learned amici
have submitted that the sentencing of the accused would
have to be examined in light of the findings in the final
report, as well as the interaction with the victim, which
has conclusively shown that the victim wishes to
continue residing with the accused, and has expressed
her fervent desire for preservation of his liberty.
The learned amici curiae have, therefore,
15.
recommended three alternatives in relation to sentencing
the accused, which are as under:
a) Firstly, learned amici submitted that this
Court can consider exercising its powers under
Article 142 to remit, reduce or suspend the
sentence. This court in
Shilpa Sailesh v. Varun
1
Sreenivasan delineated the contours of the power
under the said Article, stating that as long as
1 (2023) 14 SCC 231
Page 24 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
“complete justice” required by the “cause or matter”
is achieved without violating fundamental principles
of general or specific public policy, the exercise of the
power and discretion under Article 142(1) is valid
and as per the Constitution of India. The learned
amici submitted that, in the present case, the
minimum sentencing provisions under POCSO Act
must be considered in the light of the evolving
welfare interests of both the victim and her child.
The learned amici have reiterated that this Court has
exercised this power in similar cases of conviction
under the POCSO Act including in K. Dhandapani
2 3
v. State , Sankar v. State of Tamil Nadu and
4
.
Elumalai v. Inspector of Police
b) Secondly, the learned amici have submitted
that this court can consider remitting the sentence
of the accused by the State of West Bengal under
Section 432 CrPC (Section 473 BNSS). However, in
the facts of the present case the amicus curiae were
of the opinion that this Court ought to exercise its
jurisdiction under Article 142 to reduce the sentence
of the accused to the sentence already served in
order to do complete justice between the parties.
2
2022 SCC OnLine SC 1056
3 Curative Petition (Criminal) 3/2023
4 Crl. Appeal No. 674 of 2018
Page 25 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
c) Thirdly, the learned amici have submitted that
the power of High Court’s to quash ongoing criminal
proceedings under Section 482 of the CrPC needs to
5
be examined. In Gian Singh v. State of Punjab ,
this court has cautioned that such power may only
be exercised to secure the ends of justice or to
prevent abuse of the process of any court. The
learned amici have highlighted the different
approaches taken by High Courts. The Delhi High
6
Court in Ajay Kumar v. State (NCT of Delhi) and
7
the Madras High Court in Vijayalakshmi v. State
have interpreted the statement of objects and
reasons of the POCSO Act as not intending to
criminalize consensual romantic relationships
between adolescents. The Madras High Court, in
several cases has adopted a legal interpretation that
consensual acts do not fulfil the requirement of
‘assault’ in the offence of ‘penetrative sexual assault.’
Similarly, the Calcutta High Court in Ranjit
8
has held that
Rajbanshi v. State of West Bengal
the POCSO Act defines “penetration” as a unilateral
act by the accused, and therefore in cases of
consensual intercourse, the act of penetration may
5
(2012) 10 SCC 303
6
2022 SCC OnLine Del 3705
7 2021 SCC OnLine Mad 317
8 2021 SCC OnLine Cal 2470
Page 26 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
not solely be attributed to the accused. Various High
Courts have also considered the impact such
prosecution has on the victim and have proceeded to
quash the proceeding if pursuing the case would
harm the victim. Similarly, the impact of prosecution
on the accused has also been considered. In these
cases, the learned amici have submitted that it will
be pertinent to determine whether the victim has
given ‘informed consent’, which must be done by
interacting with the victim, considering compromise
memos and examining the statements given by the
victim under Sections 161 and 164 of the CrPC.
Further, in this light, the learned amici have
stressed on the need to identify relevant factors to be
considered by High Courts while quashing
proceedings under the POCSO Act, in order to
curtail inconsistent approaches towards the same.
Broadly, the learned amici in relation to sentencing
16.
of the accused have submitted that the underlying
rationale in the present case should be to prevent the
disruption of an existing family unit, mitigate further
hardship to the victim and her child/children, and to
balance strict statutory mandates with the principles of
proportionality and complete justice. The learned amici
contended that while the POCSO Act serves an essential
Page 27 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
purpose in protecting minors from sexual exploitation,
its rigid application in cases of adolescent relationships
can lead to outcomes that may not align with the best
interests of the prosecutrix and her dependents. In light
of this jurisprudence, this Court was requested to
consider adopting a similarly nuanced approach in the
present case to ensure that justice is served in both
letter and spirit.
17. The learned amici have also sought supplementary
directions to the effect that the facilities that have been
made available to the victim by the State Government be
continued till the child of the victim attains majority,
and the victim attains education till the level of
graduation, whichever is later. Further, learned amici
have sought a direction to the Child Welfare Committee
at the local level to apprise the victim of her rights as a
married woman, and the options available to her in the
unfortunate event of a marital discord.
18. In light of the experience gained in the present
case, the learned amici curiae have also sought broader
directions for ensuring that such cases can be prevented
or dealt with in a better manner in the future:
a) The first direction pertains to the overall
adolescent well-being and comprehensive sexuality
Page 28 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
education. The learned amici have drawn our
attention to various government and non-
governmental initiatives that have been introduced
to enhance adolescent wellbeing, provide access to
crucial health information, and ensure child
protection. These initiatives focus on emergency
assistance, digital education, peer-led awareness,
and community-driven outreach programs. Some
programs, such as Childline India, provide
immediate rescue and support services for children
in distress, while digital platforms like Saathiya
Salah and Hello Saheli aim to bridge the gap in
sexual and reproductive health education. Other
efforts, such as Project X, emphasize comprehensive
sexuality education through structured classroom
interventions. Despite these initiatives, the learned
amici have highlighted that the UNESCO, The
Journey Towards Comprehensive Sexuality
Education: Global Status Report (2021) points out
that in India, education policies on life-skills-based
HIV and sexuality education is at secondary
education-level only. In light of this, the learned
amici have advocated for comprehensive sex
education in India, stating that without systematic
policy reforms, improved teacher training, and a
Page 29 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
more inclusive curriculum, India will continue to
struggle in addressing rising adolescent health
issues, misinformation, and the stigma surrounding
sexual and reproductive health education.
b) The second direction sought for by the learned
amici relates to the implementation of a data
collection mechanism for improving institutional
accountability. The learned amici have submitted
that to ensure effective policy making, real-time
accountability, and targeted interventions, it is
crucial to establish a structured data collection
mechanism at the state level. The absence of
comprehensive, standardized data has often led to
fragmented policy implementation, making it
difficult to track progress and address gaps in
enforcement. By collecting real-time data on key
indicators—including sex education implementation,
counselling services, POCSO case tracking, and
child marriage monitoring—governments can
enhance transparency and responsiveness in
tackling these critical issues. Further, the learned
amici have submitted that integrating this data into
a real-time dashboard will provide a publicly
accessible, transparent mechanism for monitoring
Page 30 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
progress, holding institutions accountable, and
making informed policy decisions.
CONSIDERATION
19. The preliminary report of the Committee indicates
that in 2017, the victim met the accused through her
neighbour who happened to be the sister of the accused.
At that time, their ages were 13 and 25 years
respectively. It is claimed that over a period of time they
th
fell in love and on 20 May 2018, the victim left her
home. She married the accused at a temple. Within
th
nine days, on 29 May 2018, the victim’s mother lodged
a police complaint. As a result of registration of the FIR,
the police placed the victim in Narendrapur Sanlaap
home. She was there for a month, and thereafter, she
was sent back to her parents. She resumed her
education at school and was promoted to class 10. While
she was studying in class 10, she once again left her
parental home and started living with the accused.
Perhaps this period was very crucial in her life as she
felt stigmatised and humiliated, as recorded in the
preliminary report. She noticed that the entire village
was discussing her case. Her siblings were taunting her.
She was subjected to the vigilance of her mother, who
accompanied her to school and tuition classes. Given
Page 31 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
these circumstances, the victim might have felt
compelled to leave her home.
The victim continued to stay with the extended
20.
family of the accused, which consists of his parents,
uncle, aunts, his five brothers and one sister. In May
2021, the victim gave birth to a daughter. After her
delivery, she stayed with her parents for about two
weeks, and thereafter, she went back to the house of the
accused. When the daughter was seven months old, the
police arrested the accused. The Committee noted that
the arrest shattered both the victim and her daughter.
For days, her daughter cried due to the absence of her
father. The Committee recorded that the daughter
remains traumatised due to separation anxiety. As can
be seen from the report of the Committee, the two year
period when the accused was in custody, was the
toughest period for the victim. She had to run from
pillar to post to defend the accused. She spent large
amounts by way of payment of fees to lawyers for his
release. The figures of the amount she spent as noted in
the final report of the Committee are startling. At
different stages, she paid a total amount of Rs. 40,000/-
to the advocates. In addition, she claims to have paid a
sum of Rs. 10,000/- to an advocate “for winning the
case”. She spent a sum of Rs. 20,000/- to get copies of
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the chargesheet and Rs. 7,000/- for getting duplicate
copies of the court papers. Shockingly, she paid Rs.
18,000/- to a tout who promised to get bail for her
husband. Thus, she ended up spending more than Rs. 2
lakhs by incurring debt for defending the accused. She
has borrowed a sum of Rs. 2 lakhs and now, she is in a
debt trap. In fact, the Committee records that the
indebtedness has become vicious. The only redeeming
feature is that during the period of imprisonment of the
accused, her marital family took care of her and her
daughter.
21. Now, we come to the economic condition of the
victim and the accused. The family of the accused is
very poor. At present, the victim, the accused and her
daughter are staying in a temporary shelter enclosed by
brick walls, but the roof is of tarpaulin. This house has
no door. The accused is uneducated and is working as a
daily wage labourer. Apparently, he is working very
hard. It is noted by the Committee that both the victim
and her husband are very keen on ensuring that their
daughter gets education. They are taking precautions to
ensure that they do not have another child. Now, there
is improvement in the relationship between the victim
and her parents. The victim’s parents looked after her
when she was unwell.
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22. The final report of the Committee is more elaborate.
It describes the huge burden placed on the victim in
dealing with her family’s responsibilities. The final
report records that the economic status of the victim’s
family is marginally better than that of her husband.
The Committee has noted that the relationship of the
victim with her husband follows the triangular theory of
love, which states that intimacy, passion and
commitment are the main criteria for consummate love.
Initially, passion and intimacy may have taken the center
stage, but now, the Committee notes that without any
coercion from her husband, the victim is deeply
committed to him. The Committee notes that now the
victim is different. She is ably looking after her
responsibilities as a wife and mother. It also notes the
victim’s apprehension to save her husband from
punishment. The figures of the money spent by her,
which we have quoted earlier, were only in relation to the
trial stage. The final report records that she has almost
spent Rs.1,35,000/-. The figures stated make it obvious
that she has been exploited. This is evident from the
fact that she had to pay Rs.60,000/- for grant of bail,
Rs.25,000/- for securing acquittal, Rs.15,000/- for filing
a case in this Court and Rs. 25,000/- towards air fare, to
enable her husband’s advocate to appear before this
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Court. Now, the victim is showing signs of maturity.
She actively engages with adolescent girls in the area
and encourages them to study and think rationally
about relationships.
23. The facts of this case are an eye opener for
everyone. It highlights the lacuna in our legal system.
The final report concludes that though the incident was
seen as a crime in law, the victim did not accept it as
one. The Committee records that it was not the legal
crime that caused any trauma to the victim, but rather,
it was the consequences that followed, which took a toll
on her. What she had to face as a consequence was the
police, the legal system and the constant battle to save
the accused from punishment. At the same time, she
took care of her daughter to the best of her abilities,
notwithstanding the huge financial burden she carried.
In fact, the final conclusion in the report is an eye
opener. The relevant part of the final report reads thus:
“ In conclusion, a heinous crime causes
trauma in the psyche of the victim. In
this case, the law saw it as a crime, the
victim did not. Hence, the legal crime
did not cause any trauma on this
particular victim. It was the
consequences thereafter – the police
personnel, the legal system, the battle
to save her husband and do the best
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Suo Motu Writ Petition (C) No.3 of 2023, etc.
for her daughter while having a
financial burden, which is taking its
toll on her. A young woman, who
refuses to be called a “Victim”, fighting
for her husband needs all the support
that can be made available. It would
be in the best interest of the child if the
family structure can be restored. ”
What troubles us is the issue of sentencing. The
24.
reports of the Committee stare at our faces. Though the
victim did not treat the incident as a heinous crime, she
suffered because of it. This was because at an earlier
stage, the victim could not make an informed choice due
to the shortcomings of our society, our legal system and
her family. In fact, she did not get any opportunity to
make informed choice. The society judged her, the legal
system failed her, and her own family abandoned her.
Now, she is at a stage where she is desperate to save her
husband. Now, she is emotionally committed to the
accused and has become very possessive of her small
family.
25. After having read the reports and having interacted
with the Committee as well as the victim, we are of the
view that if we send the accused to jail, the worst
sufferer will be the victim herself. As compared to the
situation in 2018, she is better placed today. Now she is
comfortable with her small family. She along with the
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Suo Motu Writ Petition (C) No.3 of 2023, etc.
accused, is concentrating on their daughter and they
want to ensure that she gets quality education. At the
same time, as recorded in the final report, the victim is
attending school and is desperate to complete her school
education. Though the State has offered to enroll her in
some vocational course, she is keen on completing her
education, at least up to graduation.
In law, we have no option but to sentence the
26.
accused and send him to jail for undergoing the
minimum punishment prescribed by the Statute.
However, in this case, the society, the family of the victim
and the legal system have done enough injustice to the
victim. She has been subjected to enough trauma and
agony. We do not want to add to the injustice done to
the victim by sending her husband to jail. We as
Judges, cannot shut our eyes to these harsh realities.
Now, at this stage, in order to do real justice to the
victim, the only option left before us is to ensure that the
accused is not separated from the victim. The State and
the society must ensure that the family is rehabilitated
till the family settles down in all respects.
27. Ultimately, this Court is bestowed with
extraordinary jurisdiction under Article 142 for the sole
object of ensuring that the highest Court of the land is in
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Suo Motu Writ Petition (C) No.3 of 2023, etc.
a position to do substantial justice in its truest sense.
In the context of this situation, sadly, true justice lies in
not sentencing the accused to undergo imprisonment.
This case is not going to be a precedent and should not
be a precedent. This case is an illustration of the
complete failure of our society and our legal system. All
that the system can do for the victim now, is to help her
fulfil her desire of completing her education, settling
down in life, providing a better education to her daughter
and ensuring overall better living conditions for her
family.
28. This year we have completed 75 years of the
Constitution on 26th January. The Constitution
contemplates the State to be a welfare state. The
Constitution guaranteed social and economic justice to
all the citizens. In this case, there is a failure to provide
both social and economic justice to the victim. The facts
of the case indicate failure of the concept of welfare state.
To remedy the situation in this case, it is the obligation
of the State Government to act as the true guardian of
the victim and her child and ensure that they settle
down in life and lead a happy, healthy and constructive
life ahead.
Page 38 of 44
Suo Motu Writ Petition (C) No.3 of 2023, etc.
29. In furtherance of the aforementioned, this Court by
order dated 24th October 2024 directed the State of West
Bengal to extend educational facilities and ensure the
provision of proper and nutritious food for the child of
rd
the victim. Furthermore, by order dated 3 April 2025,
this Court directed the State to look into the feasibility of
imparting vocational training or offering part-time
th
employment to the victim, upon completion of her 10
Board Examination. In compliance with the aforesaid
orders, the State has taken the following steps:
a) The victim has been offered enrollment under
various welfare schemes aimed at ensuring better
nutrition and education for herself and her child
vide Memo No. 1806/SWD(S24P) dated 18.11.2024.
b) As per the desire of the victim, she has been
admitted to Bhadrapara Gilarchat High School on
31st December 2024 and is currently studying in the
10th standard.
c) The child of the victim has been enrolled at
the local Anganwadi Centre and is receiving cooked
food under the Supplementary Nutrition Programme
of the Integrated Child Development Services.
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Suo Motu Writ Petition (C) No.3 of 2023, etc.
d) The child of the victim has been enrolled
under the Sponsorship Programme of Mission
Vatsalya with effect from January 2025, vide Order
th
dated 17 January 2025. Under the said scheme, an
amount of Rs. 4,000/- is transferred to the
beneficiary's account in the first week of every
month until the child attains the age of 18 years.
The State has further submitted that since the victim
has expressed her desire to complete her graduation,
following the successful completion of her Board
Examination, and subject to her consent, appropriate
arrangements can be made to enroll the victim in a
vocational training course of her choice at a suitable
institution.
30. The learned senior counsel appointed as amicus
curiae have come out with very important suggestions
which we have highlighted in the earlier part of this
judgement. This Court cannot leave this case by simply
making an attempt to take care of the family of the
victim. This Court will have to carry it further by taking
forward the suggestions of the learned amici curiae . For
carrying forward the suggestion of the learned amici , we
propose to implead the Union of India through the
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Suo Motu Writ Petition (C) No.3 of 2023, etc.
Ministry of Women and Child Development, so that more
effective orders can be passed.
Hence, we pass the following order:
31.
a) We exercise our extraordinary jurisdiction
under Article 142 of the Constitution of India and
hold that though the accused stands convicted, he
will not undergo sentence for the reasons stated
earlier;
b) We direct the State to take following
measures:
i) To act as a true guardian of the victim
and her child;
ii) To provide a better shelter to the victim
and her family within a period of few
months from today;
iii) To bear the entire expenditure of the
th
education of the victim till X standard
examination and if she desires to take up
education for a degree course, till the
completion of degree course. After she
th
passes her X standard examination, the
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Suo Motu Writ Petition (C) No.3 of 2023, etc.
State can offer her vocational training,
obviously, at the cost of the State;
iv) To bear the entire expenditure of the
th
education of the child up to X standard
and ensuring that she is educated in a
very good school in the vicinity of the
place of residence of the victim; and
v) To endeavour to take the assistance of
NGOs or public-spirited citizens for the
purpose of securing the debts incurred by
the victim as a one-time measure.
c) We direct the State to file compliance report
giving details of the implementation of the directions
contained in clause (b) above. The first compliance
th
report shall be filed by 15 July 2025. Thereafter,
compliance reports shall be filed after the interval of
every six months. The first compliance report will be
th
considered on 25 July 2025. We direct the Registry
th
to list the case on 25 July 2025.
d) Issue notice to the Union of India through the
Secretary of the Ministry of Women and Child
th
Development. The notice is made returnable on 25
th
July 2025. A copy of the judgement dated 20
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Suo Motu Writ Petition (C) No.3 of 2023, etc.
August 2024 and this judgement shall accompany
notice;
Immediately on service of notice, the Secretary
e)
of the Ministry of Women and Child Development
shall appoint a Committee of experts to deal with
the suggestions of the learned amici curiae . Senior
officers of the State shall be a part of the Committee.
If necessary, the Committee can also consult the
learned senior counsel appointed as amici curiae .
Immediately on service of notice, the Secretary shall
constitute a Committee. The members of the
Committee constituted by this Court shall be
permanent invitees to the said Committee; and
f) The Committee will submit a detailed report
before the returnable date to this Court. To consider
the implementation of the suggestions of the learned
amici curiae based on the said report, this Court will
pass further directions from time to time;
32. We were immensely benefitted by the reports of the
Committee appointed by this Court. We must
acknowledge the contribution of the Committee
members. We record our appreciation for the service
rendered by Ms.Madhavi Divan and Ms.Liz Mathew, the
learned amici curiae . We must also record that Shri
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Suo Motu Writ Petition (C) No.3 of 2023, etc.
Huzefa Ahmadi, the learned senior counsel appearing on
behalf of the State, has ably assisted the Court as the
Officer of the Court.
……………………..J.
(Abhay S. Oka)
……………………..J.
(Ujjal Bhuyan)
New Delhi;
May 23, 2025.
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