8 May 2023 9:24 AM GMT
The Delhi High Court has held that Section 19 read with Section 21 of the POCSO Act, which provide for mandatory reporting of the offences under the enactment, shall override the restrictions imposed under Section 198(1) read with Section 198(3) of Cr.P.C.A division bench of Justice Manmohan and Justice Saurabh Banerjee also said that there is no distinct category within child victims of rape...
The Delhi High Court has held that Section 19 read with Section 21 of the POCSO Act, which provide for mandatory reporting of the offences under the enactment, shall override the restrictions imposed under Section 198(1) read with Section 198(3) of Cr.P.C.
A division bench of Justice Manmohan and Justice Saurabh Banerjee also said that there is no distinct category within child victims of rape as those who are married and those who are not.
The bench, however, clarified that it has not dealt with the larger issue of “marital rape” of an adult woman.
While Section 198(1) states that no court shall take cognizance of an offence punishable under Chapter XX of IPC (offences related to marriage) except upon a complaint made by some person aggrieved by the offence, Section 198 (1)(a) bars a person under the age of eighteen years from making the complaint directly.
Section 198(3) states that when the complaint is sought to be made on behalf of a person under the age of 18 years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, the court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
The bench said that the POCSO Act is a special law which comprehensively deals with heinous crimes of sexual abuse and sexual exploitation of children. It noted that some of the sexual offences against children were prosecuted under the IPC before enactment of POCSO Act in 2012.
"It is well established that when a general law and a special law dealing with some common aspect are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the Latin maxim of generalia specialibus non derogant i.e. general law yields to special law should they operate in the same field on the same subject," said the court.
The court was hearing a plea moved by NGO Independent Thought seeking a declaration that Section 198(6) of CrPC is inconsistent with the provisions of POCSO Act and is thus, unconstitutional. The plea also sought a direction that Sections 19 and 21 of POCSO Act override the restrictions which are imposed under sections 198(1) and (3) of the CrPC.
Disposing of the plea, the bench observed:
“In any event, Section 42A of the POCSO Act specifically provides that in case of any inconsistency, the provisions of POCSO Act shall have an overriding effect on the provisions of any such other law to the extent of the inconsistency.”
The court also observed that in cases where the minor victims are not able to file their complaints within time, the trial court has the power to extend the period of limitation, if it deems appropriate.
Advocates Vikram Srivastava and Shalu appeared for petitioner.
CGSC Monika Arora and Advocates Yash Tyagi and Subhrodeep represented Union of India.
Title: INDEPENDENT THOUGHT v. UNION OF INDIA & ANR.
Citation: 2023 LiveLaw (Del) 380
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