High Court says it can quash criminal cases against minors for consensual relationships

The Madras High Court has said it can exercise its jurisdiction and quash proceedings against minor children for consensual relationship if the court actions are ultimately going to be against the interest and future of the children involved.

In an order dated July 7, the division bench of Justices N Anand Venkatesh and Sunder Mohan also asked the Tamil Nadu Police to discontinue the two-finger test and the archaic potency tests.

The observation and direction came while hearing a Habeas corpus petition filed in 2022 with regard to a missing minor girl from Cuddalore district. The case turned out to be that of elopement and the judges allowed its closure.

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The court has gathered that 1,274 cases are pending before courts and Juvenile Justice Board and said it will issue a direction to the Director General of Police to identify cases involving consensual relationships from among these and place a separate list.

“If those cases are segregated from the pending cases, it will be easy for this Court to deal with them and in appropriate cases, this Court can also exercise its jurisdiction and quash the proceedings if the proceedings are ultimately going to be against the interest and future of the children involved in those cases and it is found to be an abuse of process of Court / abuse of process of law,” the division bench said in its order.

The brief note submitted by the DGP shall also be accompanied with the 164 statement recorded from the victim, the court said, adding that it wants to ensure that the two-finger test and potency test are discontinued.

“…the Potency Test that is done in cases involving sexual offences, carries a mechanism of collecting sperm from the offender and this is a method of the past. Science has improved metes and bounds and it is possible to conduct this test by just collecting the blood sample,” the judges noted.

They said advanced techniques are being followed across the world and “we should also fall in line” while asserting that there will be a direction to the Police to come up with a standard operating procedure for conducting potency test by merely collecting the blood sample.

Since Social Welfare Officers and Police seem to be acting as per the directions of CWC and Juvenile Justice Board without any independent say, the court said, the CWCs and the Juvenile Justice Boards must be sensitised.

“The sensitization programs must be conducted by the Legal Services Authority and the State Judicial Academy. Hence, the orders passed by this specially constituted Bench must be marked to the Member Secretary, Tamil Nadu State Legal Services Authority and the Director, Tamil Nadu State Judicial Academy,” the judges added.