‘Law without justice is Ferrari without engine’: Calcutta High Court junks POCSO case to save family from ‘annihilation’

The bench said that he did not enter into a sexual relationship with the girl out of lust or to satisfy his carnal desire.

The Calcutta High Court drew the analogy of a Ferrari and a fridge to underscore the relation between law and justice and said, “Law without justice is as vain as a Ferrari without its engine and as useless as a refrigerator without its compressor. Law is not an end in itself. It is a means to achieve a just end. Law cannot be divorced from reality or humanity.”

The Calcutta High Court added that such prosecution will almost certainly destroy the man’s wife, for the protection of whom and the like, the POCSO Act was promulgated, not to mention the two children born to the couple.

A love affair — major and minor

The petitioner was convicted in two separate cases for having a physical relationship with a girl who was a minor at the time. The appellant was sentenced to suffer rigorous imprisonment for a period of ten years, and was fined in the sum of Rs 5000, in default simple imprisonment for one month.

The cases were initiated by hospital authorities and the police; notably, neither girl nor her family members ever lodged a complaint. The prosecution informed the Calcutta High Court that the duo shared an “intense love affair” that began when the man was 24, and the girl was 14.

As a consequence of the physical relationship between the two, the girl became pregnant. She gave birth to a child. When she had first approached the concerned hospital to confirm whether or not she had conceived, the hospital authorities, being duty-bound in law, reported to the police that a minor girl had visited the hospital, and it was found that she was pregnant. The FIR was lodged by a sub-inspector. There was no complaint from the survivor or any of her family members.

Despite the criminal proceedings, their relationship continued, and they solemnised their marriage once the girl attained majority, the Calcutta High Court was informed.

‘What should we do?’

While deliberating on the facts of the case, the Calcutta High Court noted that the question that arises in the factual matrix is whether or not we affirm the trial court’s judgments and orders in these two appeals and dismiss the appeals, holding that there is technically no error in the judgments and orders. Will that serve the ends of justice?

The Calcutta High Court itself answered these critical questions regarding the fate of the couple, “Should our conscience permit that when we see that the two crave to be with each other and share their lives as a happy family with their two kids? The answer to each of these questions must be in the negative.”

The Calcutta High Court highlighted that while the object of the POCSO Act is definitely laudable, its demerit is its rigidity, and added that in the present case, in our opinion, there is nothing criminal in Roshan’s conduct but for the fact that the relevant provisions of the POCSO Act make his physical relationship with a girl a crime.

The Calcutta High Court went on to ask some reflective questions to themselves. “The question then is, what should we do? Should we dismiss these appeals, knowing that the same would almost certainly result in the rapid disintegration of the man’s family, leading to the family’s annihilation? Or, should we take a view within the four corners of law that would terminate the prosecution once and for all, enabling the man to be with his family and nurture the family as its paterfamilias?”

The Calcutta High Court chose the second option and stated that I do not doubt in my mind that we should adopt the second course of action. Indeed, upholding the conviction in the facts of the present case would bring the justice delivery system into shame, odium and contempt.

Law without justice as Ferrari without its engine: Order

They relied on Article 21 of the Constitution, asserting that the fundamental right to a happy married life and the right to choose a partner override statutory provisions.

The Calcutta High Court stated that upholding the conviction would lead to the “disintegration of a happy family”, reducing the girl and her children to a state of destitution.

The Calcutta High Court bench quoted Benjamin N Cardozo, former Associate Justice of the Supreme Court of the United States, saying, “Nobody can possibly dispute that the final cause of law is the welfare of society.”

The Calcutta High Court added, “Law without justice is as vain as a Ferrari without its engine and as useless as a refrigerator without its compressor. Law is not an end in itself. It is a means to achieve a just end. Law cannot be divorced from reality or humanity.”

‘River flowing into sea’

• The facts of the case are not in dispute. Evidently, there was an intense love affair between the duo.
• There is evidence on record that the two have been residing as husband and wife. They have been married upon Anjali attaining majority.
• They have two children, and they live as a happy family.
• We see, from the evidence on record, that a young man in his early 20s fell in love with a young girl in her teens.
• The girl’s elder sister is married to the man’s elder brother.
• The physical relationship that developed between the two flowed from the love that they felt for each other.
• He did not enter into a sexual relationship with the girl out of lust or to satisfy his carnal desire.
• No force was applied by a man on the girl. They were attracted to each other.
• Their physical union was as natural as a river flowing into the sea.

• The girl never made any complaint against the man, nor did any member of the girl’s family.
• Initially, the girl’s father may have been somewhat peeved with the man’s display of affection for the girl by touching her intimately. However, he never lodged any complaint.
• He subsequently accepted the marriage of his daughter. The girl’s mother has evidently accepted the man as her son-in-law.
• The girl’s elder sister has also approved her sister’s marriage. The duo has two kids who are about nine and seven years old.
• We therefore find a big happy family, all members of which could live happily ever after.

‘Result would be disintegration of happy family’

• But that was not to be the case. The POCSO Act, in effect, criminalises sex with a person below the age of 18 years.
• In the backdrop of the admitted fact that when both the 2017 and 2019 cases were initiated, the girl was below the age of 18 years, the trial judges in both cases had no choice but to convict Roshan under Section 6 of the POCSO Act.
• After all, the actus reus of the crime was not disputed even in the faintest manner by the man.
  The hands of the trial judges in the two cases were firmly tied. Such is the impact and effect of the POCSO Act.
• This is not a case where the survivor girl fell prey to the accused person’s lust, libido or carnal desire.
• This is a case of a loving consensual physical relationship in which force or violence had no role to play.
• The man is the sole earning member of the family. If these appeals fail, the man, who is presently on bail, will have to go back to custody.
• The probable and very likely result would be the disintegration of a happy family, leading to destitution and ultimate destruction and ruination of the girl and the two children.