29 July 2017 03 18 AM
With sexual crimes becoming a common story and those against children particularly on the rise, the case becomes more relevant in terms of deciding who to bring within the purview of ‘child’ under the Act. The case attempted to convince the Court to widen the ambit of the term so as to include mentally retarded adults who have attained adulthood only in respect of biological growth, while having mental growth of a child.
Title: Ms. Eera, through Dr. Manjula Krippendorf v Union of India and Anr.
Register No.: CRIMINAL APPEAL NOS.1217-1219 OF 2017
· Dipak Misra J.
· R F Nariman J.
The petitioner who is 38 years of age suffers from Cerebral Palsy and has attained only 6-8 years of mental growth was raped by the Resp-2, and case was registered under the IPC and proceedings were made under the CrPC. Since the prosecutrix is a child in terms of her mental capacity, when it came to trial at the Sessions Court of Saket, issues relating to camera trial, videography, absence of congenial atmosphere, etc. emerged. The mother of the victim filed a petition before the Delhi HC u/s 482 of CrPC praying that the matter be transferred to Special Court under POCSO Act. The HC directed videography of the proceedings as the victim mainly communicates through gestures, but did not transfer the case under POCSA. The High Court directed that the case should be assigned to a trial court presided over by a lady Judge in Saket Court. The Petition before the Supreme Court purports to widen the scope of the term “child” under the POCSO Act to consider the functional age of the subject, rather than the biological age. The case also pertained to payment of compensation under the Act to the victim, since the accused had died during the pendency of the case.
Decision of the Court:
The court ruled that the term “child” under the Act cannot be interpreted widely to include the mental age of the person, and directed that the State Legal Services Authority, Delhi shall award the compensation keeping in view the Scheme framed by the Delhi Government. The Court considered the mechanism of interpretation (literal or purposive) adopted by the Courts in various precedents and concluded that the distinction between adjudication and law-making must be maintained. Earlier decisions were examined, which ruled that judges must not proclaim that they are playing the role of law-makers merely for an exhibition of judicial valor.
Relevant Portions of the Judgment
“.......the only conclusion that can be arrived at is that definition in Section 2(d) defining the term “age” cannot include mental age…”
“….this is a fit case where the victim should be granted the maximum compensation envisaged under the scheme….”
“…..under our constitutional scheme, Judges only declare the law; it is for the legislatures to make the law.”
“…..A legislative judgment is anathema….”