Pulling up judges for expressing personal views and preaching, the Supreme Court on Tuesday set aside a Calcutta High Court judgment acquitting a man who had sex with a minor girl and also junked the High Court’s controversial remarks advising “adolescent girls to control their sexual urges”.

The court ordered setting up of an independent committee of experts, including one from the Tata Institute of Social Sciences, to ascertain the wish of the victim whether she intended to continue with the accused or was willing to be rehabilitated. The court also directed West Bengal Government to give details to the committee on the income and accommodation they would provide the victim and the child if she decides not to reside with the accused.

“The impugned judgment of the High Court is set aside and the judgment of the Special Court is restored to the extent of the conviction of the accused for the offences punishable under sub-sections (2)(n) and (3) of Section 376 of the IPC and Section 6 of the POCSO Act. Accordingly, the accused stands convicted. The acquittal of the accused for the offences punishable under Sections 363 and 366 of the IPC is confirmed,” a bench comprising justices Abhay S Oka and Ujjal Bhuyan said.

The bench also directed the West Bengal Government  to constitute a committee of three experts, including a clinical psychologist and a social scientist. “The State Government may take the assistance of NIMHANS or TISS for constituting the committee. A child welfare officer shall be appointed to assist the committee as its coordinator and secretary; (c) The committee shall be formed within three weeks from today,” it said.

Holding the accused guilty of the offences punishable under sub-sections (2)(n) and (3) of Section 376 of the IPC and Section 6 of the POCSO Act, the bench said the issue regarding sentencing will be considered after the committee’s report is received.

In its judgement, the Calcutta High Court bench of Justices Chitta Ranjan Dash and Partha Sarathi Sen High Court  had observed that female adolescents should “control sexual urges” as in the “eyes of the society she is the loser when she gives in to enjoy the sexual pleasure of hardly two minutes”. The high court had made the observations while hearing an appeal by a man who was awarded a 20-year sentence for sexual assault. The high court had acquitted the man.

Justice Oka, who pronounced the verdict on behalf of the bench, said that directions have been issued to the States to implement provisions of Section 19 (6) of POCSO Act along with Sections 30 to 43 of the Juvenile Justice Act that deal with issues related to a child’s need for care and protection and setting up of shelter homes.

Taking suo moto cognizance of the case titled “In Re: Right to Privacy of Adolescents”, the Supreme Court said the observations were not only “highly objectionable” but also “completely unwarranted,” as they violated the rights of adolescents under Article 21 of the Constitution. The Court expressed concern over the High Court’s deviation from its remit to decide solely on the merits of the appeal, criticizing the judges for expressing personal views and preaching.

Justice Oka wondered how the High Court used its power under Section 482 of the Code of Criminal Procedure, 1973, – that gives High Courts the power to prevent the abuse of the legal process and to ensure justice – to overturn the conviction in the case on the grounds that POCSO should be amended to recognize adolescent sexuality.

“This extraordinary situation was created because the State machinery did not follow the provisions of law starting from sub-section (6) of Section 19 of the POCSO Act. The importance of rehabilitation of the victims of offences under the POCSO Act, which is a mandatory requirement of law, is being overlooked by all stakeholders. Perhaps, at levels, there is a need for introspection and course correction. We include even the Judiciary in that<” read the order.

In an observation on the language used by the High Court in its judgment, Justice Oka said that guidelines have been issued regarding how to write judgments. Justice Oka further said that a committee of experts have been constituted to help the victim in the case to make an informed choice.

The State of West Bengal also filed a special leave petition challenging the High Court’s judgment on its merits.