BIOLOGICAL NOT MENTAL AGE OF VICTIM TO DECIDE POCSO TRIAL: SC

NEWDELHI: A mentally infirm victim of a sexual crime cannot be called a child to avail legal remedy under the Protection of Children against Sexual Offences Act (POCSO) of 2012, the Supreme Court held on Friday.

A bench of Justice Dipak Misra and Justice RF Nariman said provisions of POCSO cannot be interpreted to include a victim’s mental age as a factor to decide whether trial in a case can be held under the special law. The dictating factor has to be the biological age, the apex court held. According to POCSO, a child is defined as someone below 18 years.

The court said that despite their utmost effort they could not interpret the legal provisions as per the PIL filed by the mother of a 38-year-old rape victim suffering from cerebral palsy since birth.

The petitioner’s counsel, Aishwarya Bhati, argued the victim’s biological age should not be the governing yardstick but she should be considered as a child because she is intellectually challenged and mentally challenged.

Senior advocate Sanjay Hegde, who was asked to assist the court on behalf of the accused, argued there was a distinction between mental age and chronological age. Had it been the intention of the Parliament not to make such a distinction, it would have included within the protective ambit of the definition pertaining to adults whose mental age is less than 18 years, he submitted.

“The Parliament has felt it appropriate that the definition of the term “age” by chronological age or biological age to be the safest yardstick than referring to a person having mental retardation. It may be due to the fact that the standards of mental retardation are different and they require to be determined by an expert body,” the twomember bench said