Isabella Mariam

The High Court of Gujarat Single Bench of Justice J.C. Doshi has quashed the First Information Report (FIR) and all consequential proceedings against a petitioner who was 11 years old at the time of the alleged incident. Invoking Section 83 of the Indian Penal Code (IPC), the Court held that criminal proceedings could not be sustained against a child who had not attained sufficient maturity to understand the nature and consequences of the act. The Court directed the removal of the petitioner’s name from all police, investigation, and court records to safeguard the minor’s identity. The FIR was declared to be in violation of the statutory protection afforded to children under IPC and thereby liable to be quashed.

The petitioner filed an application under Section 482 of the Code of Criminal Procedure, 1973. The application sought the quashing and setting aside of FIR No. C.R.No.I – 8 of 2010 registered at Rajkot Mahila Police Station. The FIR alleged offences under Sections 376, 354, 504, and 114 of the Indian Penal Code.

Also Read: S.129 CGST Act | Mere Payment Of Penalty To Release Goods Doesn’t Waive Right To Challenge Levy | Supreme Court

The petitioner contended that he was a minor aged 10 years and 6 months at the time of the alleged incident, which was stated to have occurred between 10.05.2010 and 23.05.2010. His birth date, as per the birth certificate, is recorded as 26.12.1999. The advocate for the petitioner, Mr. Virat G. Popat, argued that even if the contents of the FIR were assumed to be true, the petitioner was legally immune from criminal liability under Section 83 IPC due to lack of maturity.

Section 83 IPC provides that an act committed by a child above seven and under twelve years of age is not an offence if the child has not attained sufficient maturity of understanding to judge the nature and consequences of the act. The petitioner’s counsel stated that no forensic or psychological assessment had been carried out to determine the petitioner’s maturity level, thus rendering the criminal proceedings unsustainable.

To support this contention, reference was made to the judgment of the Supreme Court in Hiralal Mallick vs. State of Bihar, (1977) 4 SCC 44. The judgment underscores the principle that children between 7 and 12 years of age are within a "twilight zone" of criminal responsibility and cannot be presumed to possess adult-like understanding.

Additionally, the petitioner relied on the judgment of the Bombay High Court in AK vs. State of Maharashtra, 2022 LiveLaw (Bom) 430, in which Section 83 IPC was invoked under similar circumstances to set aside criminal proceedings against a minor.

The learned advocate for the respondent No. 2, Ms. Tarjani K. Anjaria, submitted that the allegations in the FIR were of a serious nature and that the maturity of the petitioner should be examined during the course of the trial. She opposed the quashing of the FIR at the threshold stage.

However, the Court found merit in the petitioner’s submission that the child’s age and the absence of any forensic evaluation negated the continuation of proceedings. The learned Additional Public Prosecutor, Mr. Chintan Dave, did not provide any argument demonstrating how Section 83 IPC would not apply to the present facts.

The Court noted that even the FIR recorded the petitioner’s age as 11 years and that the investigating officer appeared to lack knowledge or awareness of Section 83 IPC. The High Court concluded that the institution of FIR and the continuation of the criminal case were contrary to the statutory provision and thus liable to be quashed.

The Court recorded that "even if it is an offence, it is proved that the child is more than 7 years of age and under 12 years and not attaining sufficient majority to understand the act which he is alleged to have done and consequences thereof."

Quoting Section 83 of the IPC, the Court noted "Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion."

The Court referred to Hiralal Mallick (supra) and cited the following observations from paragraph 10 of the judgment

"Adult intent, automatically attributed to infant means, is itself an adult error. It is every day experience that little boy as a class have less responsible appreciation of dangers to themselves or others by injurious acts... The Indian Penal Code, which needs updating in many portions, extends total immunity upto the age of seven (S. 82) and partial absolution upto the age of twelve (S. 83) ... The compassion of the penal law for juvenescents cannot be reduced to jejunity by forensic indifference since the rule of law lives by law-in-action, not law in the books."

The Court further observed that "the PI, Bhaktinagar Police Station must not have knowledge of section 83 of the IPC or filing of FIR is in defiance of section 83 of the IPC."

Citing the precedent in State of Haryana vs. Bhajanlal, AIR 1992 SC 604, the Court recounted the principles under which criminal proceedings may be quashed. The Court particularly referred to paragraphs that provide that criminal proceedings may be set aside when the allegations do not disclose a cognizable offence or when the prosecution is manifestly malafide. The following principles were noted:

"(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused... (3) Where, the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out the case against the accused... (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

Also Read: Bombay High Court Vacates Interim Order Holding Up Replacement of Turkish Ground Handling Firm Çelebi at Mumbai Airport

The Court held that the above propositions applied to the present case, as the FIR itself recorded the petitioner’s age as 11 and lacked evidence of maturity or intent.

The Court allowed the petition and directed that "impugned FIR being C.R.No.I – 8 of 2010 registered with Rajkot Mahila Police Station for the offences punishable under Sections 376, 354, 504, 114 of the IPC as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioner herein are hereby quashed and set aside."

The Court stated that "Rule made absolute to the aforesaid extent. Direct service is permitted."

The Court further directed that "the concerned investigating officer as well as learned trial Court is directed to remove / delete name of the petitioner from the police records, investigation papers as well as Court records to protect identity of the petitioner."

Advocates Representing the Parties:

For the Petitioner: Mr. Virat G. Popat, Advocate

For the Respondents: Ms. Tarjani K. Anjaria, Advocate; Mr. Chintan Dave, Additional Public Prosecutor

Case Title: ABC vs. State of Gujarat & Anr.

Case Number: R/Special Criminal Application (Quashing) No. 3148 of 2013

Bench: Justice J.C. Doshi