Protection Of Section 22(2) POCSO Act Not Available To Victim Who Misleads Authority Regarding Her Age: Calcutta HC

The Calcutta High Court observed that the benefit of Section 22(2) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is not available to the victim who misleads the authority regarding her age and persuades the authority to take legal action against an innocent person by claiming that she is a minor.

The Court directed the Special Court to make a discreet enquiry in a case involving filing of false complaint under the POCSO Act against three men.

The Court took suo motu cognizance of the case in which the victim girl’s mother had lodged a complaint against the said three persons on false allegations of rape upon her daughter.

A Division Bench comprising Justice Arijit Banerjee and Justice Apurba Sinha Ray said, "It is true that minor victims have been protected by Section 22(2) of the POCSO Act, 2012 even if they make false allegations. But, if a victim misleads the authority regarding her age and persuades the authority to take legal action against an innocent person by claiming that she is a minor, we think that the benefit of the provisions as envisaged under Section 22(2) of POCSO Act, 2012 is not available to such victim who is not a minor at the time of lodging false complaint."

The Bench noted that, as a result of such an act, three innocent persons have spent almost one year behind the bar. 

"… we direct the Learned Judge, Special POSCO Court, Berhampore, Murshidabad to make a discreet enquiry (at the time of conclusion of the trial) in respect of the act of the defacto-complainant and her daughter in making false complaint and also recording of false statement under Section 164 of Cr.P.C. and thereby fabricating false evidence within the meaning of Section 192 of the IPC", it ordered.

Advocate Sabir Ahmed represented the petitioners while Advocates Soumyajit Das Mahapatra and Shiladitya Banerjee represented the respondents.

Facts of the Case -

Three men were charged for committing rape upon the alleged minor daughter of the complainant and were arrested in 2023 for the offences under Sections 341 and 376D of the Indian Penal Code (IPC) and Sections 4 and 6 of POCSO Act. They were languishing in judicial custody for almost one year. Astonishingly, during the hearing of the bail application under Section 439 of Criminal Procedure Code (CrPC), the complainant i.e., the victim’s mother submitted before the Court that she lodged a complaint against the said men on false allegations of rape upon her daughter and at the time of recording statements under Section 164 CrPC, her daughter falsely implicated them under political pressure.

The Court found that the issue regarding false implication of the accused persons under political pressure was very serious and while granting bail to them, it issued suo motu Rule calling upon the alleged minor daughter and the defacto-complainant to show cause as to why necessary legal proceeding shall not be initiated against them for having made false complaint and also having recorded false statements on oath before the Magistrate under Section 164 CrPC. The complainant filed her response to the Rule wherein she tendered unconditional apology for whatever was done by her and her minor daughter. She specifically stated that she was compelled to make and pursue the false complaint due to tremendous pressure of the local political leaders. She further stated that her husband is an ailing person who fell from an under construction building while working as a mason and he is bedridden with a broken spinal cord since 2017.

The High Court in the above context of the case, observed, “… we are alive to the fact that we were hearing the bail application of the accused persons under Section 439 of Cr.P.C. For the purpose of preventing sanctity of the legal procedure being marred at the hands of unscrupulous persons, after conclusion of the trial, the allegations against defacto-complainant for fabricating false evidence with the help of her daughter are to be enquired into by the concerned Learned Special Judge under POCSO Act, 2012 at Berhampore, Murshidabad wherein the Berhampore Police Station Case No. 1114 of 2023 dated 09.08.2023 is pending since the said court is to deal with terminal proceeding. In other words, the relevant case will be concluded/terminated in the said court and not before this High Court.”

The Court added that, as there is allegation that the victim and her mother concealed the victim’s actual age at the time of making false complaint, the actual age of the victim at the time of lodging false complaint should also be ascertained by the concerned Special Judge who is supposed to deal with the enquiry under Section 340 of CrPC (379 BNSS) and if it appears that the victim was major at the time of lodging false complaint and recording of her statement under Section 164 of CrPC, appropriate action should also be taken against the victim without hesitation.

“In other words, in that event, the benefit of Section 22(2) of POCSO Act, 2012 will not be available to the said victim, being the daughter of the defacto-complainant”, it clarified.

The Court further said that if the Judge, Special POCSO Court finds that the defacto-complainant and/or her daughter (if major) are responsible for fabrication of false evidence under Section 192 of IPC, he shall forthwith lodge a complaint before the Competent Court of Magistrate against the defacto-complainant and/or her daughter (if she was major at the time of recording her statement) under Section 340 CrPC (Section 379 BNSS) for initiating a criminal proceeding against them.

Accordingly, the High Court issued necessary directions.

Cause Title- Court On Its Own Motion v. XXXX (Victim Girl) & Anr.

Appearance:

Petitioners: Advocates Sabir Ahmed and Somnath Adhikary.

Respondents: Advocates Soumyajit Das Mahapatra, Arindam Sen, and Shiladitya Banerjee.

Click here to read/download the Order