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TMI Blog2017 (7) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible to look into the circumstances which were prevalent at that time when the law was enacted and which necessitated the passing of that enactment and for the limited purpose of appreciating the background and the antecedent factual matrix leading to the legislation, it is open to the court to look into the ‘Statement of Objects and Reasons’ of the Bill which accentuated the statement to provide a remedy for the then existing malady. The purpose of POCSO Act is to treat the minors as a class by itself and treat them separately so that no offence is committed against them as regards sexual assault, sexual harassment and sexual abuse. The sanguine purpose is to safeguard the interest and well being of the children at every stage of judicial proceeding. It provides for a child friendly procedure. It categorically makes a distinction between a child and an adult. On a reading of the POCSO Act, it is clear to us that it is gender neutral. In such a situation, to include the perception of mental competence of a victim or mental retardation as a factor will really tantamount to causing violence to the legislation by incorporating a certain words to the definition. Children with d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as laid for the offence punishable under Section 376(2)(l) of the Indian Penal Code (IPC) before the concerned Judicial Magistrate, who, in turn, committed the case to the Court of the learned Assistant Special Judge/Special Fast Track Court, Saket, New Delhi for trial. Many a fact has been enumerated which need not be stated in detail. Suffice it to mention that the trial commenced and when the question of examination of the appellant came up, various aspects such as camera trial, videography of the trial, absence of congenial atmosphere and many other issues emerged. As the mother of the appellant felt that the trial court was not able to address the same, the victim through her mother, filed a petition under Section 482 of the Code of Criminal Procedure (CrPC) before the High Court of Delhi praying, inter alia, that the matter should be transferred to the Special Court under the POCSO Act as the functional age of the prosecutrix is hardly around 6 to 8 years and there is necessity for trial to be conducted in a most congenial, friendly and comfortable atmosphere and the proceeding should be videographed. The High Court vide order dated 15.06.2015 issued directions for making nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fering from a devastating mental and physical disorder since her birth and though she is biologically aged about 38 years, she has not mentally grown beyond six years. In support of her stand, a certificate of the neurophysician and the psychologist of AIIMS, New Delhi was filed. She had referred to Section 28 of the POCSO Act which deals with Special Courts. She had also drawn attention of the Court to Sections 24 to 27 of the POCSO Act to highlight that there is a special procedure for recording statement of the child and, therefore, when medical evidence had established the mental age, 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 retarded under the POCSO Act. 6. As the respondent No. 2 did not appear, the Court appointed Mr. Sanjay R. Hegde, learned senior counsel, as Amicus Curiae to argue and put forth the points on behalf of respondent No. 2. On behalf of respondent No.1, that is, State (Government of NCT of Delhi), Mr. P.K. Dey and Mr. Siddharth Dave, learned counsel assisted the Court. 7. After the matter was heard, the judgment was reserved and after som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ild of 8 to 10 years, for the mental age, as it is called, stops progressing. She has drawn a comparison between various provisions of the IPC where the legislature has recognized a person of unsound mind to be on the same pedestal as child which indicates that IPC prescribes protection on the basis of maturity of understanding, to the persons suffering from unsoundness of mind. Emphasis is on departure from the chronological age by the legislature by laying stress on capacity to understand the nature and consequence of the act. She has also referred to Chapter XXV of the CrPC that enumerates the provisions as to the accused persons of unsound mind. 10. Learned counsel would contend that dignity of a child is of extreme significance and this Court has eloquently accentuated on the sustenance of such dignity. To buttress her submission, she has relied upon Reena Banerjee another v. Govt. (NCT of Delhi) and others(2015) 11 SCC 725), Mofil Khan another v. State of Jharkhand(2015) 1 SCC 67), Suchita Srivastava another v. Chandigarh Administration(2009) 9 SCC 1), and Tulshidas Kanolkar v. State of Goa(2003) 8 SCC 590). 11. It is propounded by her that to read mental age with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years refer to chronology and hence, it is possible to interpret the word age in a particular provision to mean mental age without offending the term of the word year which means year and year has been defined in the General Clauses Act, 1897 as period of 365 days. He has referred to the Juvenile Justice (Care and Protection of Children) Act, 2015 to highlight that the legislative intention there is explicit with regard to mental capacity of a person which would have a relevant factor to determine the forum of trial. It is further contended by him that if the trial is held in case of mental retarded person whose biological age is more than 18 years by the Special Court as provided under the POCSO Act, the accused is no way affected because the punishment for the offence remains the same even if the trial is held by the Court of Session under the CrPC. Learned counsel in his written note of submissions has placed reliance upon Sheikh Gulfan others v. Sanat Kumar Ganguli( AIR 1965 SC 1839), Yudhishter v. Ashok Kumar(1987) 1 SCC 204), Pratap Singh v. State of Jharkhand and another(2005) 3 SCC 551), Directorate of Enforcement v. Deepak Mahajan and another(1994) 3 SCC 440). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the same regard being had to the pronouncements in P.K. Unni v. Nirmala Industries and others(1990) 2 SCC 378) and Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India and others(1982) 3 SCC 140 : [1983] 1 SCR 393) . 15. Learned senior counsel would submit that if mental age is read into the definition of the child , it will be against the manifest intention of the legislature. As an instance, he has referred to Section 5(k) of the POCSO Act which alludes to child s mental or physical disability in the context of aggravated penetrated sexual assault. He has submitted that if the term age is interpreted to engulf mental and biological age, the scheme of the POCSO Act shall be defeated and it will lead to inconsistencies. For the said purpose, he has referred to the concept of mental age in respect of which the scientific views and methods vary. The eventual stand of the learned senior counsel is that mental age with a proximate figure can never be constant and is likely to vary with time and surrounding circumstances and, therefore, interpreting the word age falling under the definition of child to include mental age also would breach the settled principles of crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child; AND WHEREAS it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child; AND WHEREAS the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent a. the inducement or coercion of a child to engage in any unlawful sexual activity; b. the exploitative use of children in prostitution or other unlawful sexual practices; c. the exploitative use of children in pornographic performances and materials; AND WHEREAS sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed . 18. The purpose of referring to the Statement of Objects and Reasons and the Preamble of the POCSO Act is to appreciate that the very purpose of bringing a legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child; The aforesaid provision, as is evident, lays stress on the mental disability of the child. 21. Part C of Chapter II deals with sexual assault and punishment therefor. Section 7 lays down about the sexual assault. Part D deals with aggravated sexual assault and punishment therefor. Section 9 deals with aggravated sexual assault which is akin to Section 5. Part E deals with sexual harassment and punishment therefor. The said harassment lays down various acts which will amount to sexual harassment. 22. On a reading of the aforesaid Chapters, it is quite manifest and limpid that the legislature has intended to protect the child from any kind of sexual assault and harassment. It has also laid stress upon the mental and physical disability of the child. The child, as per the definition, is the principal protagonist and the POCSO Act protects the child from any sexual act and also takes into consideration his mental disability. Thus, the legislature was alive to the condition of mental disability. Chapter III of the POCSO Act deals with using child for pornograp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een framed and the said Rules have come into force on 14.11.2012. Rule 7 which deals with compensation reads as under: 7. Compensation ( 1) The Special Court may, in appropriate cases, on its own or on an application filed by or on behalf of the child, pass an order for interim compensation to meet the immediate needs of the child for relief or rehabilitation at any stage after registration of the First Information Report. Such interim compensation paid to the child shall be adjusted against the final compensation, if any. (2) The Special Court may, on its own or on an application filed by or on behalf of the victim, recommend the award of compensation where the accused is convicted, or where the case ends in acquittal or discharge, or the accused is not traced or identified, and in the opinion of the Special Court the child has suffered loss or injury as a result of that offence. (3) Where the Special Court, under subsection (8) of section 33 of the Act read with subsections (2) and (3) of section 357A of the Code of Criminal Procedure, makes a direction for the award of compensation to the victim, it shall take into account all relevant factors relating to the loss or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiastic submissions of Ms. Bhati and the submission advanced in support by Mr. Dey are meant to urge the Court to adopt the purposive approach regard being had to the centripodal interest of the child that can, in its connotative contextual expanse, include a person who has not mentally grown in age, though may have felt the sketchy shadow of biological years. Their accent is not only on the provisions of the Act but also on the methodology of computation under the POCSO Act. 26. Presently, I shall refer to certain authorities as regards the purposive interpretations and its contours, for learned counsel for the appellant would like us to perceive the provision through the said magnified glass using different lens. In Cabell v. Markhan(148 F 2d 737 (2d Cir 1945) Learned Hand, J. articulated the merits of purposive interpretation: Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts goal and has a remedial intent. It also states certain things which clearly mean what has been said. In that case, there is no room for the Judge and solely because he is a constructionist Judge, cannot possess such tool to fly in the realm of fanciful area and confer a different meaning. His ability to create in the name of judicial statesmanship is not limitless. It has boundaries. He cannot afford to romance all the time with the science of interpretation. Keeping these aspects in mind, I shall presently refer to some authorities where purposive construction has been adopted and where it has not been taken recourse to and the cardinal principle for the same. 29. In Gurmej Singh v. Pratap Singh Kairon (AIR 1960 SC 122), the Constitution Bench was dealing with the true construction of Section 123(7) of the Representation of the People Act, 1951. The question that arose before the Constitution Bench was whether a Lambardar, a person in the service of Government or covered by any of the clauses of Section 123(7) of the 1951 Act. The Election Tribunal had held that Lambardar was a revenue officer. The High Court set at naught the finding recorded by the Election Tribunal by opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy as enacted. The Court further ruled that for determining the purpose of legislation, it is permissible to look into the circumstances which were prevalent at that time when the law was enacted and which necessitated the passing of that enactment and for the limited purpose of appreciating the background and the antecedent factual matrix leading to the legislation, it is open to the court to look into the Statement of Objects and Reasons of the Bill which accentuated the statement to provide a remedy for the then existing malady. 32. It is worthy to state here that where a purposive construction is conceived of or the said principle is sought to be applied, the context becomes an important and influential aspect and when one tries to understand the legislative intention, the meaning from the exposition of the purpose or the effort to have the remedy through the enactment has to be appositely perceived. 33. In R.M.D. Chamarbaugwalla and another v. Union of India and another (AIR 1957 SC 628), Sections 4 and 5 of the Prize Competitions Act (42 of 1955) were impugned as unconstitutional. The object of the said legislation, as stated in the preamble was to provide for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory of the legislation, as to what gives the answer. Nor does the restriction of the impugned provisions to competitions of a gambling character affect either the texture or the colour of the Act; nor do the provisions require to be touched and rewritten before they could be applied to them. They will squarely apply to them on their own terms and in their true spirit, and form a code complete in themselves with reference to the subject. The conclusion, the Court said, was that it was inescapable that the impugned provisions, assuming that they apply by virtue of the definition in Section 2(d) to all kinds of competitions, were severable in their application to competitions in which success did not depend upon any substantial extent on skill. 34. The aforesaid authority has identified two clear cut classes of prize competitions and ultimately applied the doctrine of severance. The Court was not persuaded by the laudable object that the Parliament intended to control and regulate the prize competition but keeping in view all the factors that can legitimately be taken into account, interpreted the provision. Thus, the Court was cautious and only tried to take into account what cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidual for the benefit of his wife or a minor child or both in Section 16(3)(b), it may be possible in the particular instances of the mothers being connected with the minor children in the manner suggested by the Revenue to include the mothers also within the connotation of these words. Such inclusion which involves different interpretations of the words any individual or such individual in the different contexts could never have been intended by the legislature and would in any event involve the addition of the words as the case may be which addition is not normally permissible in the interpretation of a statute. 37. Though the case related to the interpretation of a taxing statute and not a social welfare legislation, yet the Court kept in view the surrounding circumstances and the reasons that led to the passing of the legislation and further opined that the meaning sought to be placed by the revenue could not be conceived of without addition of words which is not normally permissible in the statute. It had also ruled that the Court should avoid bringing a particular category within the expansive connotation of the words used. 38. In Sheikh Gulfan (supra), the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be careful and cautious while adopting an alternative reasonable interpretation. The acceptability of the alternative reasonable construction should be within the permissible ambit of the Act. To elaborate, introduction of theory of balance cannot be on thin air and in any case, the Courts, bent with the idea to engulf a concept within the statutory parameters, should not pave the path of expansion that the provision by so stretch of examination envisages. 41. In Pratap Singh (supra), the Constitution Bench was required to resolve the conflicting views between Arnit Das v. State of Bihar(2000) 5 SCC 488) and Umesh Chandra v. State of Rajasthan(1982) 2 SCC 202) and in that context, the issue before the larger Bench was whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced in the court/competent authority under the Juvenile Justice Act, 1986. The Court adverted to Section 2 of the said Act that dealt with presumption and determination of age, and Section 32 that provided presumption and determination of age. Referring to the said Section, it was contended that the word is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suffering from legal disability. 44. I may hasten to state here that observations and directions given in the said case are absolutely within the permissible limits of Juvenile Justice Act, 2000 and as well as CrPC. Accentuation on duty and role of the Court in the said case do not throw any laser beam or show the guiding principle for interpreting the definition of the word child as used in Section 2(d) of the POCSO Act. 45. In Chandra Mohan v. State of Uttar Pradesh and others (AIR 1966 SC 1987), Subba Rao, CJ, while speaking for the Bench, had a pragmatic approach. The learned Chief Justice held that if two constructions are possible then the Court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory. I have referred to this decision as it used the words, give rise to practical inconvenience . 46. In Deepak Mahajan (supra), the Court referred to a passage from Maxwell on Interpretation of Statutes, Tenth Edn., at p. 229 which is extracted below: Where the language of a statute, in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. The aforesaid passage by Chinnappa Reddy, J. had been referred to and placed reliance upon to appreciate the context and the purpose regard being had to the nature of the text. The learned Judge has also emphasized that no words of a statute should be construed in isolation. 50. In Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and others(2001) 4 SCC 139), the Constitution Bench, while dealing with the concept of interpretation and the duty of the Judge, opined that while examining a particular statute for finding out the legislative intent it is the attitude of Judges in arriving at a solution by striking a balance between the letter and spirit of the statute without acknowledging that they have in any way supplement the statute would be the proper criteria. The duty of Judges is to expound and not to legislate is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout reference to some context . According to Sutherland there is a basic fallacy in saying that words have meaning in and of themselves , and reference to the abstract meaning of words , states Craies, if there be any such thing, is of little value in interpreting statutes . in determining the meaning of any word or phrase in a statute the first question to be asked is - What is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word or phrase. The context, as already seen, in the construction of statutes, means the statute as a whole, the previous state of the law, other statutes in pari materia, the general scope of the statute and the mischief that it was intended to remedy. 52. The Court thereafter referred to the authorities in Poppatlal Shah v. State of Madras (AIR 1953 SC 274) and Peerless General Finance and Investment Co. Ltd. (supra) and quoted observations of Lord Steyn in R (Westminister City Council) v. National Asylum Suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances to which they owe their origin and to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences. That apart, the said adventure, no doubt, enlarges the discretion of the Court as to interpretation, but it does not imply power to substitute individual notions of legislative intention. It implies only a power of choice where differing constructions are possible and different meanings are available. As is manifest, the individual notions should not come in the way of legislative intention. 55. In this regard, reference to Gem Granites v. Commissioner of Income Tax, T.N. (2005) 1 SCC 289) would be fruitful. In the said case, the Court observed that an argument founded on what is claimed to be the intention of Parliament may have appeal but a court of law has to gather the object of the statute from the language used, but what one may believe or think to be the intention of Parliament cannot prevail if the language of the statute does not support that view. In Padma Sundara Rao (Dead) and others v. State of T.N. and others (AIR 2002 SC 1334), the Constitution Bench referred to two principles of construction one relating to casus o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the colour , the content and the context of such statutes (we have borrowed the words from Lord Wilberforce s opinion in Prenn v. Simmonds(1971) 3 All ER 237 : (1971) 1 WLR 1381). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. 57. In Githa Hariharan (supra) the Court was dealing with the Constitutional validity of Section 6(a) of Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardian and Wards Act, 1890. A contention was raised that the said provision violated Articles 14 and 15 of the Constitution. Section 6(a) of the HMG Act reads as follows: 6. Natural guardians of a Hindu minor.-The natural guardian of a Hindu minor, in respect of the minor s person as well as in respect of the minor s property (excluding his or her undivided interest in joint family property), are- a) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reason of the law. See Commentaries on the Laws of England (facsimile of 1st Edn. of 1765, University of Chicago Press, 1979, Vol. 1, p. 59). Mukherjea, J. as the learned Chief Justice then was, in Poppatlal Shah v. State of Madras (AIR 1953 SC 274) said that each word, phrase or sentence was to be construed in the light of purpose of the Act itself. But words must be construed with imagination of purpose behind them, said Judge Learned Hand, a long time ago. It appears, therefore, that though we are concerned with seeking of intention, we are rather looking to the meaning of the words that the legislature has used and the true meaning of those words as was said by Lord Reid in BlackClawson International Ltd. v. Papierwerke WaldhofAschaffenburg A.G. (1975 AC 591 : (1975) 2 WLR 513 (HL) We are clearly of the opinion that having regard to the language we must find the reason and the spirit of the law. (Emphasis in original) 59. Thereafter, the Court referred to S. Gopal Reddy v. State of A.P. (1996) 4 SCC 596) and High Court of Gujarat and another v. Gujarat Kishan Mazdoor Panchayat and others(2003) 4 SCC 712) and opined: 28. The aforesaid authorities give stress on text ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the legislature expresses itself with use of correct words and in the absence of any ambiguity or the resultant consequence does not lead to any absurdity, there is no room to look for any other aid in the name of creativity. There is no quarrel over the proposition that the method of purposive construction has been adopted keeping in view the text and the context of the legislation, the mischief it intends to obliterate and the fundamental intention of the legislature when it comes to social welfare legislations. If the purpose is defeated, absurd result is arrived at. The Court need not be miserly and should have the broad attitude to take recourse to in supplying a word wherever necessary. Authorities referred to hereinabove encompass various legislations wherein the legislature intended to cover various fields and address the issues. While interpreting a social welfare or beneficent legislation one has to be guided by the colour , content and the context of statutes and if it involves human rights, the conceptions of Procrustean justice and Lilliputtian hollowness approach should be abandoned. The Judge has to release himself from the chains of strict linguistic int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e protection of the dignity of the child is the spine of the legislation. It also lays stress on mental physical disadvantage of a child. It takes note of the mental disability. The legislature in its wisdom has stipulated a definition of the child which I have noted hereinbefore. The submission is that the term age should not be perceived through the restricted prism but must be viewed with the telescope and thereby should include the mental age. 64. Learned counsel for the appellant has drawn support from Daniel Johannes Stephanus Van Der Bank v. The State[2014] ZAGPPHC 1017] wherein the High Court of South Africa was dealing with an appeal against the conviction and, in appeal there issues arose, two of which are (1) the appointment of an intermediary in accordance with the provisions of Section 170A of the Criminal Procedure Act 51 of 1977 and (2) that the court a quo erred in accepting the evidence of the complainant who, to all intents and purpose, was a single witness. In the said case, the High Court of South Africa was dealing with mental age of a victim. At the time of her testimony, she was 19 years old and the State led evidence of a clinical psychologist who h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant was regarded as moderately mentally retarded and s 170A was nonetheless invoked (wrongly so that court held) because the complainant was eighteen years old at the time of testifying. It is not necessary to consider whether Dayimani has been correctly decided. The proper approach, in my view, would be to consider the evidence other than that adduced by the complainant and assess it to establish whether the convictions should be sustained or set aside. Thereafter the Court held thus: By definition, common law rape is the unlawful and intentional sexual intercourse by a person without the consent of the other. Consent has to be free, voluntary and consciously given in order to be valid. In our law, valid consent requires that the consent itself must be recognised by law; the consent must be real; and the consent must be given by someone capable of consenting.2 The first two requirements do not need to be discussed since the issue is whether the complainant was capable of giving consent related to the third requirement. Where a person in intellectually challenged, his or her condition must be expertly assessed and only then can a finding as to such capability be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r mental age was assessed at 6 years old. She was sexually assaulted. The trial court acquitted the accused which was confirmed by the Court of Appeal. The Supreme Court of Canada by majority judgment unsettled the conclusion of the trial court and the Court of Appeal after dealing with provisions pertaining to Section 16 of the Canada Evidence Act as introduced in 1987. The trial Judge excluded her evidence and acquitted the accused which was confirmed by the Court of Appeal, as stated earlier. The majority while disagreeing speaking through the learned Chief Justice adverted to the principle of competence to testify, concept of admissibility and the responsibility of the trial Judge under the said Act to decide what evidence, if any, to be accepted. Thereafter reference was made to competence of adult witness with mental disability and Section 16 which governs competence of adult witnesses with mental disabilities was analysed. A contention was raised that Section 16(3) should be supplemented by the requirement that an adult witness with mental disability who cannot take an oath or affirm must not only be able to communicate the evidence and promise to tell the truth, but must al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal and most compelling answer to the equivalency argument is simply this: When it comes to testimonial competence, precisely what, one may ask, is the difference between an adult with the mental capacity of a sixyearold, and a sixyearold with the mental capacity of a sixyearold? Parliament, by applying essentially the same test to both under s. 16(3 ) and s. 16.1(3 ) and (6 ) of the Canada Evidence Act , implicitly finds no difference. In my view, judges should not import one. [53] I conclude that s. 16(3 ) of the Canada Evidence Act , properly interpreted, establishes two requirements for an adult with mental disabilities to take the stand: the ability to communicate the evidence and a promise to tell the truth. A further requirement that the witness demonstrate that she understands the nature of the obligation to tell the truth should not be read into the provision. x x x x [63] I conclude that, insofar as the authorities suggest that promising to tell the truth in s. 16(3 ) should be read as requiring an abstract inquiry into an understanding of the obligation to tell the truth, they should be rejected. All that is required is that the witness be able to communicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant by upholding the conviction but reduced the sentence to seven years. Before this Court, it was contended that in the absence of any other person being examined, the testimony of the prosecutrix could not be placed reliance upon. The Court analysed the evidence and placed reliance on the version of the victim and rejected the plea of consent stating it as absolutely shallow. The Court held that a mentally challenged person cannot give legal consent which would involve understanding of the effect of such consent and it has to be a conscious and voluntary act. A distinction was drawn between consent and submission and ruled that every consent involves a submission but the converse does not follow and an act of helpless resignation could not be treated as a consent. Proceeding further, the Court said for constituting consent there must be exercise of intelligence based on the knowledge of the significance and the moral effect of the Act. While parting with the case, the Court added one aspect which requires to be noted: 8. a few words are necessary to be said about prescription of sentence in a case where a mentally challenged or deficient woman is the victim. In su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and the same protection has been extended to persons suffering from unsoundness of mind and, therefore, it is limpid that a penal law sometimes makes departure from the chronological age by placing more emphasis on capacity to understand the nature and consequences of an act. On that basis, an argument has been structured to treat the mental age of an adult within the ambit and sweep of the term age that pertains to age under the POCSO Act. In this regard, I am obligated to say what has been provided in the IPC is on a different base and foundation. Such a provision does treat the child differently and carves out the nature of offence in respect of an insane person or person of unsound mind. There is a prescription by the statute. Learned counsel would impress upon us that I can adopt the said prescription and apply it to dictionary clause of POCSO Act so that mental age is considered within the definition of the term age . I am not inclined to accept the said submission. 73. In this regard, it is worthy to note that the legislature despite having the intent in its Statement of Objects and Reasons and the long Preamble to the POCSO Act, has thought it wise to define the ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide a qualified right to abortion and the termination of pregnancy has never been recognized as a normal recourse for expecting mothers. In the said context, the Court held: 22. There is no doubt that a woman s right to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a compelling State interest in protectin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from those who are found to be mentally ill . While a guardian can make decisions on behalf of a mentally ill person as per Section 3(4)(a) of the 1971 Act, the same cannot be done on behalf of a person who is in a condition of mental retardation . After so stating, the Court opined that there cannot be a dilution of the requirement of consent since the same would amount to an arbitrary and unreasonable restriction on the reproductive rights of the victim. The Court analysed the reasoning enumerated by the High Court and reversing the view of the High Court held: 32. Besides placing substantial reliance on the preliminary medical opinions presented before it, the High Court has noted some statutory provisions in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as well as the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 where the distinction between mental illness and mental retardation has been collapsed. The same has been done for the purpose of providing affirmative action in public employment and education as well as for the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being given to his degree of mental responsibility. 7. Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to higher authorities. 77. The twoJudge Bench laid emphasis on principle No. 7, as reproduced above, for it prescribes that a fair procedure should be used for the restriction or denial of the rights guaranteed to mentally retarded persons which should ordinarily be the same as those given to other human beings. It is significant to note that in the said decision, the Court referred to eugenics theory which was used in the past to perform forcible sterilizations and abortions on mentally retarded persons. Commenting on the same, it was observed that such measures are antidemocratic and violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted, similar distinction has been maintained in The Rights of Persons with Disabilities Act, 2016. The purpose of referring to the said judgment is that this Court has kept itself alive to the fact that the Parliament has always kept the mental retarded person and mentally ill person in two different compartments. 80. Mr. Hegde, learned senior counsel appearing for respondent No. 2, would contend that degree of mental retardation or the IQ test may not always be a determinative factor and, therefore, the principle of casus omissus would not be applicable to the case at hand. 81. I have already referred to the judgment of the Constitution Bench in Padma Sundara Rao (supra). In the said case, the Court mentioned the situations where the principle of casus omissus would be applied. Applying the said principle, it can be stated without any fear of contradiction that the said principle cannot be applied to the provision that has arisen for consideration. 82. The situation can be viewed from another aspect. The POCSO Act has identified minors and protected them by prescribing the statutory age which has nexus with the legal eligibility to give consent. The Parliament has felt it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere of interpretation. It has to be gathered from the legislative intention and I have already enumerated how the legislative intention is to be gathered. Respect for the dignity of a person, as submitted, has its own pedestal but that conception cannot be subsumed and integrated into a definition where the provision is clear and unambiguous and does not admit of any other interpretation. If a victim is mentally retarded, definitely the court trying the case shall take into consideration whether there is a consent or not. In certain circumstances, it would depend upon the degree of retardation or degree of understanding. It should never be put in a straight jacket formula. It is difficult to say in absolute terms. 84. In this regard, I may profitably refer to Section 164 CrPC which deals with recording of confessions and statement. Section 164(5A)(b), which is pertinent, reads as under: (b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examinationinchief, as specified in section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 670) the Court observed that: 15. the Judges should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. 87. In view of the aforesaid principles, the only conclusion that can be arrived at is that definition in Section 2(d) defining the term age cannot include mental age. 88. Having said so, I would have proceeded to record the formal conclusion. But, in the instant case, I am disposed to think, more so, when the accused has breathed his last and there is a medical certificate from AIIMS as regards the mental disability of the victim, there should be no further enquiry as envisaged under Section 357A of the CrPC. The said provision reads as follows: 357A Victim compensation scheme. ( 1) Every State Government in coordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. (2) Whenever a recom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll award the compensation keeping in view the Scheme framed by the Delhi Government. As regards the quantum, I am of the convinced opinion that it is a fit case where the victim should be granted the maximum compensation as envisaged under the Scheme. I clarify that it is so directed regard being had to the special features of the case. 89. The appeals are disposed of, accordingly. JUDGMENT R.F.NARIMAN, 1. Having read the erudite judgment of my learned brother, and agreeing fully with him on the conclusion reached, given the importance of the Montesquiean separation of powers doctrine where the judiciary should not transgress from the field of judicial law making into the field of legislative law making, I have felt it necessary to add a few words of my own. 2. Mr. Sanjay R. Hegde, the learned Amicus Curiae, has argued before us that the interpretation of Section 2(1)(d) of the Protection of Children from Sexual Offences Act, 2012 cannot include mental age as such an interpretation would be beyond the Lakshman Rekha that is, it is no part of this Court s function to add to or amend the law as it stands. This Court s function is limited to interpreting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo , and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico . 5. Several centuries later, the Privy Council, (in a case which came up from the Bombay High Court, construing the Ship Registry Act of 1841) in Crawford v. Spooner, Moore s Indian Appeals, Volume 4 (1846 to 1850) 179, held as follows:- Their Lordships are clearly of opinion, that the Judgment of the Court of Bombay cannot stand. The construction of the Act must be taken from the bare words of the Act. We cannot fish out what possibly may have been the intention of the Legislature; we cannot aid the Legislature's defective phrasing of the Statute; we cannot add, and mend, and, by construction, make up deficiencies which are left there. If the Legislature did intend that which it has not expressed clearly; much more, if the Legislature intended something very different; if the Legislature intended something pretty nearly the opposite of what is said, it is not for Judges to invent something which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by the context or the Preamble of the statute. The House of Lords went further, and stated that the grammatical and ordinary sense of the words to be construed would be given effect to unless it would lead to some absurdity, repugnance, or inconsistency with the rest of the statute, in which case the grammatical and ordinary sense of the words may be modified so as to avoid such absurdity or inconsistency, but no further. It is important to note that, even under this rule, the literal meaning of the text of a statute is not sacrosanct, and can, in certain exceptional circumstances, be modified. However, the immediate consequence of applying the literal rule of construction of a statute is that words must be understood in their ordinary grammatical sense. One obvious problem with this is that words often have different shades of meaning and are not fixed in their content. This was put rather well by Justice Holmes in Towne v. Eisner, 245 U.S. 418: But it is not necessarily true that income means the same thing in the Constitution and the Act. A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide with particularity for each set of circumstances comprehended within a general purpose. The result is that in every interpretation we must pass between Scylla and Charybdis. No one has ever suggested that the courts must always follow the letter of a statute regardless of the outcome, nor does anyone contend that the words may be entirely disregarded. The issue is where to strike the balance. (at page Nos.375 and 376) 11. Added to these problems is the problem of inept draftsmanship. In Kirby v. Leather, 1965(2) All E.R. 441, Danckwerts, L.J., criticised the language of the Limitation Act, 1939 when he spoke of the custody of a parent. He wrote: The custody of a parent : what a strange conception that is in regard to a capable young man of twenty-four years and over. This is such an extraordinary provision that at times it seemed to me that the draftsman must have been of unsound mind. Of course that is absurd. The same provision has been repeated in the Law Reform (Limitation of Actions, c.) Act, 1954, and the Limitation Act 1963. We must strain ourselves to give it a sensible meaning. The idea behind this provision is, I suppose, that the parent in such a case will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any whose business consist wholly or mainly in the dealing in or holding of investments in clause (i) of Explanation 2 to Section 23-A. The Act contains many mind-twisting formulas but Section 23-A along with some other sections takes the place of pride amongst them. Section 109 of the 1961 Income Tax Act which has taken the place of old Section 23-A of the Act is more understandable and less abstruse. But in these appeals we are left with Section 23-A of the Act. (Para 15) 14. All this reminds one of the old British ditty: I m the Parliament s draftsman, I compose the country s laws, And of half the litigation I m undoubtedly the cause! 15. In order that inept draftsmanship be explained, in the old days sometimes the Judges themselves enquired of the King s Council what a statute meant. (See Dias jurisprudence Second edition see page 110 footnote 2). The whole difficulty lies in defining the limits of the Lakshman Rekha . In a House of Lord s judgment, in Boyse v. Rossborough, 1857 6 HLC 61 which dealt with whether a will was valid, Lord Cranworth held: The inquiries must be: First, was the alleged testator at the time of its execution a person of sound mind? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmissible out of Section 35(3) and the appeal provisions, in the brooding background of social justice sanctified by Article 38, and of free legal aid enshrined by Article 39-A of the Constitution. xx xx xx Judicial Legisputation to borrow a telling phrase of J. Cohen, is not legislation but application of a given legislation to new or unforeseen needs and situations broadly falling within the statutory provision. In that sense, interpretation is inescapably a kind of legislation [Dickerson: The Interpretation and Application of Statutes, p. 238]. This is not legislation stricto sensu but application, and is within the court's province. (at pages 1059 and 1060) 18. Similarly, in C.I.T. v. B.N. Bhattacharjee, 1979 (3) SCR 1133 the same learned Judge in construing Section 245M of the Income Tax Act stated: We are mindful that a strictly grammatical construction is departed from in this process and a mildly legislative flavour is imparted by this interpretation. The judicial process does not stand helpless with folded hands but engineers its way to discern meaning when a new construction with a view to rationalisation is needed. (at page 1155) 19. In Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SCC p. 285, para 148) Perhaps, with the passage of time, what may be described as the extension of a method resembling the arm-chair rule in the construction of wills, Judges can more frankly step into the shoes of the legislature where an enactment leaves its own intentions in much too nebulous or uncertain a state. (emphasis supplied) 28. It will be befitting, in this context, to recall the view expressed by Judge Frank in Guiseppi v. Walling [144 F 2d 608, 620, 622 (CCA 2d, 1944) quoted in 60 Harvard Law Review 370, 372] which read thus: The necessary generality in the wordings of many statutes, and ineptness of drafting in others frequently compels the court, as best as they can, to fill in the gaps, an activity which no matter how one may label it, is in part legislative. Thus the courts in their way, as administrators perform the task of supplementing statutes. In the case of courts, we call it interpretation or filling in the gaps ; in the case of administrators we call it delegation or authority to supply the details. 29. Subba Rao, C.J. speaking for the Bench in Chandra Mohan v. State of U.P. [(1967) 1 SCR 77 : AIR 1966 SC 1987 : (1967) 1 LLJ 41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. [at para 17] 21. Instances of creative interpretation are when the Court looks at both the literal language as well as the purpose or object of the statute in order to better determine what the words used by the draftsman of legislation mean. In D.R. Venkatachalam v. Deputy Transport Commissioner, (1977) 2 SCC 273, an early instance of this is found in the concurring judgment of Beg, J. The learned Judge put it rather well when he said: It is, however, becoming increasingly fashionable to start with some theory of what is basic to a provision or a chapter or in a statute or even to our Constitution in order to interpret and determine the meaning of a particular provision or rule made to subserve an assumed basic requirement. I think that this novel method of construction puts, if I may say so, the cart before the horse. It is apt to seriously mislead us unless the tendency to use such a mode of construction is checked or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to depart from the Court's construction. [para 33] 23. Indeed, the modern trend in other Commonwealth countries, including the U.K. and Australia, is to examine text as well as context, and object or purpose as well as literal meaning. Thus, in Oliver Ashworth Ltd. V. Ballard Ltd., [1999] 2 All ER 791, Laws L.J. stated the modern rule as follows: By way of introduction to the issue of statutory construction I should say that in my judgment it is nowadays misleading - and perhaps it always was - to seek to draw a rigid distinction between literal and purposive approaches to the interpretation of Acts of Parliament. The difference between purposive and literal construction is in truth one of degree only. On received doctrine we spend our professional lives construing legislation purposively, inasmuch as we are enjoined at every turn to ascertain the intention of Parliament. The real distinction lies in the balance to be struck, in the particular case, between the literal meaning of the words on the one hand and the context and purpose of the measure in which they appear on the other. Frequently there will be no opposition between the two, and then no difficulty arises. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... welfare legislation and tax statutes may have to be approached somewhat differently. For these slightly different reasons I agree with the conclusion of the Court of Appeal that s 1(1) of the 1990 Act must be construed in a purposive way. (at 122, 123)66 We find the same modern view of the law in CIC Insurance Limited v. Bankstown Football Club Limited, F.C. (1997) 187 CLR 384, where the High Court of Australia put it thus: 66 In a recent judgment by a 7 Judge Bench of this Court , the majority, speaking through Lokur, J., referred to the aforesaid judgment with approval. See Abhiram Singh v. C.D. Commachen - 2017 (2) SCC 629 at Para 37. It is well settled that at common law, apart from any reliance upon 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. [Black-Clawson International Ltd v Papierwerke Waldhof- Aschaffenburg [1975] UKHL 2; [1975] AC 591 at 614, 629, 638; Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1 at 25-26; Pepper v Hart [1992] UKHL 3; [1993] AC 593 at 630.]. Moreover, the modern approach to statutory interpretation (a) insis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Lalita Jalan v. Bombay Gas Co. Ltd. and Ors., (2003) 6 SCC 107, this Court referred to the correct principle of construction of penal statutes as follows: We would like to mention here that the principle that a statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case. In Murlidhar Meghraj Loya v. State of Maharashtra [(1976) 3 SCC 684 : 1976 SCC (Cri) 493 : AIR 1976 SC 1929] Krishna Iyer, J. held that any narrow and pedantic, literal and lexical construction of food laws is likely to leave loopholes for the offender to sneak out of the meshes of law and should be discouraged and criminal jurisprudence must depart from old canons defeating criminal statutes calculated to protect the public health and the nation's wealth. The same view was taken in another case under the Prevention of Food Adulteration Act in Kisan Trimbak Kothula v. State of Maharashtra [(1977) 1 SCC 300 : 1977 SCC (Cri) 97 : AIR 1977 SC 435] . In Supdt. and Remembrancer of Legal Affairs to Govt. of W.B. v. Abani Maity [(1979) 4 SCC 85 : 1979 SCC (Cri) 902 : AIR 1979 SC 1029] the word may occurring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the bridegroom or his parents or other relatives make a demand of dowry during marriage negotiations and later on after bringing the bridal party to the bride's house find that the bride or her parents or relatives have not met the earlier demand and call off the marriage and leave the bride's house, should they escape the punishment under the Act. The answer has to be an emphatic no . It would be adding insult to injury if we were to countenance that their action would not attract the provisions of Section 4 of the Act. Such an interpretation would frustrate the very object of the Act and would also run contrary to the accepted principles relating to the interpretation of statutes. [para 12] 27. A recent judgment, also discussing the provisions of the Dowry Prohibition Act, is reported as Rajinder Singh v. State of Punjab, (2015) 6 SCC 477. Discussing the reach of Section 304B of the Penal Code read with the Dowry Prohibition Act, this Court has held: In order to arrive at the true construction of the definition of dowry and consequently the ingredients of the offence under Section 304-B, we first need to determine how a statute of this kind needs to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the learned counsel as an aid for construction neatly states the principle and therefore may be extracted: Lord Justice James speaking for the Board observes at LR p. 191: No doubt all penal statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair commonsense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument. In our view this passage, if we may say so, restates the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 Bell CC 38 : 169 ER 1158] , statutes were required to be perfectly precise and resort was not had to a reasonable construction of the Act, and thereby criminals were often allowed to escape. This is not the present mode of construing Acts of Parliament. They are construed now with reference to the true meaning and real intention of the legislature. At p. 532 of the same book, observations of Sedgwick are quoted as under: The more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the legislature, without unwarrantable severity on the one hand or unjustifiable lenity on the other, in cases of doubt the courts inclining to mercy. Concurring with Balakrishnan, J., Dharmadhikari, J. added: (Standard Chartered Bank case [Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 : 2005 SCC (Cri) 961] , SCC pp. 550-51, para 36) 36. The rule of interpretation requiring strict construction of penal statutes does not warrant a narrow and pedantic construction of a provision so as to leave loopholes for the offender to escape (see Murlidhar Meghraj Loya v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be imposed, namely, on persons coming under categories (ii) and (iii) above, but where it cannot be imposed, namely, on a company, fine will be the only punishment. In keeping with these principles, in K. Prema S. Rao v.Yadla Srinivasa Rao [(2003) 1 SCC 217 : 2003 SCC (Cri) 271] , this Court said: (SCC p. 228, para 27) 27. The legislature has by amending the Penal Code and the Evidence Act made penal law more strident for dealing with and punishing offences against married women. In Reema Aggarwal v. Anupam [(2004) 3 SCC 199 : 2004 SCC (Cri) 699] , in construing the provisions of the Dowry Prohibition Act, in the context of Section 498-A, this Court applied the mischief rule made immortal by Heydon's case [(1584) 3 Co Rep 7a : 76 ER 637] and followed Lord Denning's judgment in Seaford Court Estates Ltd. v. Asher[(1949) 2 KB 481 : (1949) 2 All ER 155 (CA)] , where the learned Law Lord held: (Seaford Court Estates Ltd. case[(1949) 2 KB 481 : (1949) 2 All ER 155 (CA)] , KB p. 499) He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given case clearly and unequivocally point otherwise. [Paras 13 to 20] 28. In the case of the Employees Provident Funds Miscellaneous Provisions Act, 1952, again a beneficial legislation with dire consequences to those who breach it, this Court construed a penalty provision in the said statute by adopting a purposive approach. Thus, in N.K. Jain v. C.K. Shah, (1991) 2 SCC 495, this Court said: Relying on the aforesaid principles governing the construction of the penal statute Shri P. Chidambaram, learned counsel for the appellants submitted that the provisions of Section 14(2-A) and Section 17(4) should reasonably be construed and if so construed Section 14(2-A) becomes inapplicable to the facts of the case on hand. It is true that all the penal statutes should be construed strictly and the court must see that the thing charged as an offence is within the plain meaning of the words used but it must also be borne in mind that the context in which the words are used is important. The legislative purpose must be noted and the statute must be read as a whole. In our view taking into consideration the object underlying the Act and on reading Sections 14 and 17 in full, it be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that the Act with which we are concerned is a beneficial/penal legislation, let us see whether we can extend the definition of child in Section 2(1)(d) thereof to include persons below the mental age of 18 years. 30. The Statement of Objects and Reasons of the 2012 Act is set out hereunder: STATEMENT OF OBJECTS AND REASONS Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Further, Article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. 2. The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the British calendar. This coupled with the word age would make it clear that what is referred to beyond any reasonable doubt is physical age only. 32. Section 5(k) makes this further clear when it states: 5. Aggravated penetrative sexual assault (a) to (j) xxx xxx xxx (k) whoever, taking advantage of a child s mental or physical disability, commits penetrative sexual assault on the child. It will be seen that when mental disability is spoken of, it is expressly mentioned by the statute, and what is mentioned is a child s mental disability and not an adult s. 33. That a child alone is referred to under the other provisions of the Act is further made clear by Section 13(a), which reads as under: 13. Use of child for pornographic purposes. - Whoever, uses a child in any form of media (including programme or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes- (a) representation of the sexual organs of a child. Obviously, the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating itself. It is at this point that the Judge crosses the Lakshman Rekha and becomes a legislator, stating what the law ought to be instead of what the law is. 37. A scrutiny of other statutes in pari materia would bring this into sharper focus. The Medical Termination of Pregnancy Act, 1971, again brings into sharp focus the distinction between mentally ill persons and minors . Sections 2(b), (c) of the said Act are as follows:- 2. Definitions.-In this Act, unless the context otherwise requires,- (a) xxx xxx xxx (b) mentally ill person means a person who is in need of treatment by reason of any mental disorder other than mental retardation. (c) minor means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his majority. 38. Section 3(4)(a) of the 1971 Act reads as under : 3. When pregnancies may be terminated by registered medical practitioners. (1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative of such person; or (c) a care-giver, or if not available or not willing to be the nominated representative of such person; or (d) a suitable person appointed as such by the concerned Board; or (e) if no such person is available to be appointed as a nominated representative, the Board shall appoint the Director, Department of Social Welfare, or his designated representative, as the nominated representative of the person with mental illness: Provided that a person representing an organisation registered under the Societies Registration Act, 1860 or any other law for the time being in force, working for persons with mental illness, may temporarily be engaged by the mental health professional to discharge the duties of a nominated representative pending appointment of a nominated representative by the concerned Board. (5) The representative of the organisation, referred to in the proviso to sub-section (4), may make a written application to the medical officer incharge of the mental health establishment or the psychiatrist incharge of the person s treatment, and such medical officer or psychiatrist, as the case may be, shall accept him as the temporary nominated re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minors, the legal guardian shall be their nominated representative unless the concerned Board orders otherwise, if grounds are made out under sub-section (2). 40. Similarly, the Rights of Persons with Disabilities Act, 2016 maintains the selfsame distinction. Sections 2(s), 4, 9, 18 and 31 of the said Act read as under: 2. Definitions. In this Act, unless the context otherwise requires - (a) to (r) xxx xxx xxx (s) person with disability means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others. 4. Women and children with disabilities - (1) The appropriate Government and the local authorities shall take measures to ensure that the women and children with disabilities enjoy their rights equally with others. (2) The appropriate Government and local authorities shall ensure that all children with disabilities shall have right on an equal basis to freely express their views on all matters affecting them and provide them appropriate support keeping in view their age and disability. 9. Home and family - (1) No child with disab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Retardation and Multiple Disability. 2. In acknowledgement of a wide range of competencies among these individuals, the Central Government seeks to set up a National Trust to be known as a National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability. The said Trust will be promotive, proactive and protectionist in nature. It will seek primarily to uphold the rights, promote the development and safeguard the interests of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability and their families. 3. Towards this goal, the National Trust will support programmes which promote independence, facilitating guardianship where necessary and address the concerns of those special persons who do not have their family support. The Trust will seek to strengthen families and protect the interest of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability after the death of their parents. 4. The Trust will be empowered to receive grants, donations, benefactions, bequests and transfers. The Central Government will make a one-time contribution of rupees one hundred crores to the corpus of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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