POCSO: The necessity of the Romeo-Juliet Clause to safeguard against the misuse

The Appeal

2. The State of Uttar Pradesh, in this appeal by special leave, challenges the correctness of final judgment and order dated 29th May 2024 in CRMBA No. 4880 of 2024 passed by the High Court of Judicature at Allahabad, whereby the learned Single Judge granted bail to Respondent No.1 in connection with the First Information Report1 No.622 of 2022, PS Kotwali, Orai, District Jalaun, dated 24th November 2022 and issued a number of directions.

3. The question presented in this appeal, however, is not one of relative ease as an appeal against grant of bail and instead hinges on the scope of Section 439 of the Code of Criminal Procedure, 1973. In the High Court’s own words- “The question of law which arises for consideration in this bail application is the nature of the legal duty cast on the police to draw up a medical report determining the age of a victim while investigating POCSO Act offences. The jurisdiction of this Court to determine this question will predicate the discussion on the merits of the bail.”

Facts And Previous Proceedings

4. The facts, in a nutshell, are that Respondent no. 1 is accused of having committed offences under Sections 363, 366 of the Indian Penal Code, 18603 and Sections 7 and 8 of the Protection of Children from Sexual Offences Act, 20124 in the subject FIR, lodged at the instance of the mother of the victim, where the allegation is that her 12-year old girl had been abducted from her home. The Trial Court rejected bail by order dated 29th September 2023. In the proceedings for bail before the High Court, by order dated 22nd April 2024 the Chief Medical Officer, Jalaun was directed to constitute a medical board for determination of the age of the victim. On 8th May 2024 the Court then released the accused on interim bail, observing that there was wide inconsistency in the age of the victim as in the school records, or as stated by her in her statement under Sections 161 and 164 CrPC regarding age/intimacy with the accused among other factors. In terms of the impugned judgment, the Court confirmed the said order, while adjudicating on the issue indicated above.

Question To Be Determined

6. The question that this Court is called upon to consider is whether under Section 439, CrPC the High Court could have issued directions, mandating age determination test to be conducted in all cases involving the POCSO Act. This larger question involves twin considerations, one on the aspect of jurisdiction and the other on the aspect of law i.e., the postulate of the act regarding determination of age, and how the directions issued in the impugned judgement correspond to or are in contravention of the same.

Analysis And Determination

7. We have heard the learned senior counsel and learned counsel for the parties.

What were the bases for the High Court’s Conclusions and Directions?

9. Although we have, in earlier paragraphs of this judgement, summarised the reasoning of the High Court, let us now unpack the same with reference to the earlier judgements of the Court in Aman@Vansh v. State of UP7 and Monish v. State of U.P. Both these judgments as also the judgment impugned before us, have been passed by the very same learned Single Judge. Since Monish (supra) was earlier in point of time, we will take that up first.

9.2 Now, let us examine Aman (supra).

The Court noted a recurring problem in POCSO cases: frequent contradictions in the recorded age of victims and false depiction of majority as minority, often leading to the weaponisation of the legislation against young couples in consensual relationships. Medical determinations of age, drawn per the latest scientific protocols, were deemed more reliable and essential to prevent injustice.

Referring to Sections 164-A CrPC and 27 POCSO Act, the Court held that a medical report determining the victim’s age is a mandatory component of investigation in every POCSO case. Such reports assist Courts in making accurate findings, preventing false implication, and ensuring fair application of law.

Accordingly, the Court issued directions:

“1. The police authorities/investigation officers shall ensure that in every POCSO Act offence a medical report determining the victim’s age shall be drawn up at the outset under Section 164A of the Criminal Procedure Code read with Section 27 of the Protection of Children from Sexual Offences Act, 2012. The report may be dispensed with if medical opinion advises against it in the interests of the victim’s health.

2. The medical report determining the age of the victim shall be created as per established procedure of law and in adherence to latest scientific parameters and medical protocol.

3. The medical report determining the age of the victim shall be submitted under Section 164-A of the Code of Criminal Procedure to the Court without delay.

4. The Director General (Health), Government of Uttar Pradesh, Lucknow shall also ensure that the doctors who comprise the Medical Board are duly trained and follow the established medical protocol and scientific parameters for determining the age of the victims in such cases. Constant research shall be done in this field to keep the reports in line with the latest scientific developments. A copy of this order be communicated by the learned Government Advocate to the Director General of Police, Lucknow, Uttar Pradesh for compliance and Director General (Health), Government of Uttar Pradesh,”

Relying on the reasoning in Chandrapal Singh (supra) the learned single Judge reaffirmed that Pradeep Kumar Chauhan (supra) did not correctly reflect this settled legal position. That decision had treated documentary proof of age such as school or matriculation certificates as final and conclusive, thereby excluding the possibility of further scrutiny. It held that such a restrictive view was inconsistent with the this Court’s liberal and contextual interpretation of Section 94 JJ Act. Accordingly, Pradeep Kumar Chauhan (supra) was distinguished and held to be inapplicable. The Court concluded that the determination of age, whether of a victim or an accused – must rest on the totality of credible evidence, and that the statutory presumptions under Section 94 JJ Act,though significant, are rebuttable and subject to judicial verification to ensure fairness and prevent miscarriage of justice.

The Jurisdictional Question

10. The High Court, while exercising bail jurisdiction issued the directions reproduced supra. One of the issues raised by the Appellant-State is that the same was beyond the scope of jurisdiction. The question of jurisdiction to issue these directions also confronted the learned Single Judge who answered the same stating that while exercising statutory jurisdiction, the High Court is not denuded of its constitutional status and, therefore, it is entirely open, to consider questions of law as in the present case. Observations in this regard are extracted hereunder:

“para.10”

11. Let us now, independently examine this issue.

11.1 Section 439 CrPC reads as under:

“439. Special powers of High Court or Court of Session regarding bail”.

11.2 The upshot of the above discussion is that a Court’s jurisdiction, i.e., either the Court of Sessions or the High Court under Section 439 CrPC is limited to adjudicating the question of the person concerned being released into society pending trial or whether they should continue to be incarcerated.

11.3 It is unquestionable that High Court is a constitutional Court. However, in the instant case the error of jurisdiction by the High Court was in exercise of a statutory power and not under the Constitution. The powers arising from the Constitution and those flowing from a statute are distinct and separate. A constitutional power is the one which emanates directly from the text and spirit of the Constitution of India, the supreme and fundamental charter of governance, and inheres in those institutions or functionaries whose existence and competence are defined by it. Such powers are self-sustaining; they are not contingent upon any act of the Legislature, nor can they be abridged or extinguished except through a formal amendment under Article 368. For example, the President’s power to dissolve the Lok Sabha under Article 85(2)(b); the Governor’s authority to reserve a bill for the consideration of the President under Article 200, or the jurisdiction of the Supreme Court under Article 32 are all in exercise of constitutional power. These powers represent the apex of the legal hierarchy, deriving their legitimacy not from the will of the people as expressed by Parliament, but from the sovereignty of the Constitution itself.

In contrast, a statutory power is derivative and conditional, drawing its vitality from a law duly enacted by the Parliament or a State Legislature. Such power exists only within the four corners of the enabling statute and is circumscribed by its language, purpose, and legislative intent. Illustratively, the powers conferred upon the Central Government under the Environmental (Protection) Act, 1986, to frame rules, issue directions, or regulate industrial operations are purely statutory in nature, as are the regulatory functions vested in the Securities and Exchange Board of India under the SEBI Act, 1992, or those entrusted to the Competition Commission of India under the Competition Act, 2002. The exercise of these powers must conform strictly to the parameters laid down by the statute; any transgression beyond its express or implied authority is rendered ultra vires and, therefore, void in the eyes of law.

The essential distinction between these two species of power lies not merely in their origin but also in their constitutional status and susceptibility to control. Constitutional powers are sovereign, foundational, and insulated from the vicissitudes of ordinary legislation; they can neither be curtailed nor expanded by parliamentary enactment. Statutory powers, by contrast, are subordinate and mutable, existing at the pleasure of the Legislature, which may at any time amend, restrict, or repeal them through the ordinary legislative process. Judicial review, while applicable to both, assumes different contours in each case: in relation to constitutional powers, the Courts examine whether their exercise conforms to constitutional limitations including the protection of fundamental rights and the inviolable tenets of the basic structure whereas, in the case of statutory powers, the inquiry is confined to whether the authority has acted within the scope and purpose of the statute from which its power is drawn.

The constitutional power cannot overshadow the statutory power, enlarging its scope beyond what has been envisaged by the statute. In other words, while both powers rest with the High Court, one power cannot usurp the ambit of another, unless otherwise permitted by law.

Summation

18. In fine, our conclusions are that the High Court in bail jurisdiction was coram non judice for issuing directions mandating the investigating authorities within the State of Uttar Pradesh to necessarily have a medical examination of the victim conducted, with the particular intent to determine the age of the victim as also holding, that a bail Court would be empowered to entertain challenges to the documents produced to establish the age of the victim The importance of medical examination in the harrowing crimes of sexual assault cannot be overstated, it is not merely a record of injury or a catalogue of biological traces; it is the voice of the body, speaking when words falter and memory trembles. In cases where the victim’s courage may be tested by stigma, shame, or the weight of societal scrutiny, medical evidence provides an impartial testament, grounding the pursuit of justice in the certainty of observable fact. It is, in essence, the bridge that links the personal suffering of the victim with the impartial adjudication of the law. But at the same time, its purpose, which is to gather essential evidence in a scientifically sound manner, with due regard to the principles of human dignity on one hand and evidence on the other, cannot be reduced to a common, matter of course step – especially when a procedure with a legislative imprimatur has been laid down. The Court could not have passed directions that go against clearly stated legislative intent under Section 94 of the JJ Act. The determination of the age of the victim is a matter for trial, and the presumption which is accorded to the documents enumerated under the Section, has to be rebutted there, for that is the appropriate forum to do so, not the bail Court. If the question of age is raised at the stage of bail, it is only open for the Court to, from the perusal of the documents, take a prima facie view as to the age of the victim, not one on the correctness of the documents since that would amount to a mini trial. It could also not have fused statutory jurisdiction with a constitutional one, lifting one to the other, or downgrading the higher to the lower in order to grant itself the wherewithal, in an otherwise fairly circumscribed jurisdiction, to do what could not be done.

A necessitated post-script

19. As the conclusions drawn above indicate the impugned judgment and order of the High Court has to be set aside on grounds of transgression of the jurisdiction present and thereby lacking the appropriate directions. It is to be set aside also because it goes against the statutory prescription under the JJ Act. Be that as it may, this Court has not lost sight of the well-intentioned purport of this order. The POCSO Act is one of the most solemn articulations of justice aimed at protecting the children of today and the leaders of tomorrow. Yet, when an instrument of such noble and one may even say basic good intent is misused, misapplied and used as a tool for exacting revenge, the notion of justice itself teeters on the edge of inversion. Courts have in many cases sounded alarm regarding this situation. Misuse of the POCSO Act highlights a grim societal chasm – on the one end children are silenced by fear and their families are constrained by poverty or stigma, meaning thereby that justice remains distant and uncertain, and on the other hand, those equipped with privilege, literacy, social and monetary capital are able to manipulate the law to their advantage. The impugned judgment is one amongst many where Courts have spoken out. Not only are instances rife where the age of the victim is misrepresented to make the incident fall under the stringent provisions of this law but also there are numerous instances where this law is used by families in opposition to relationships between young people. In Satish alias Chand v. State of U.P. 32, the High Court, noted that on few occasions concern had been expressed by the Court with respect to application of the Act on consenting adolescence when it comes to consensual relationships between teenagers, four factors have been highlighted which, is crucial for the Courts to consider:

“ ……. “

This chasm between access and abuse is also mirrored in the misuse of Section 498-A IPC and the Dowry Prohibition Act, 1961. Amongst numerous examples, we may only refer to Rajesh Chaddha v. State of U.P, where this Court lamented the use of these Sections without specific instances or relevant details, among other cases. It is also to be stated though that no amount of judicial vigilance against misuse can alone bridge this ever-widening gap. The first line of defence lies with the Bar i.e., the body that translates grievance into action and is the gatekeeper of justice at the point of entry. When it comes to matters such as these, the responsibility of the advocate is profound – to examine the allegations with detachment and necessary discretion and to counsel restraint when grievance masks vengeance and to refuse participation in litigation when it can be seen that an ulterior motive is sought to be agitated under the guise of seeking protection of the law. It is only when the Bar takes a principled, proactive role, that the legislation intended as a shield can be stopped from being twisted into a weapon. A lawyer who tempers aggression with calm, reason and rationality, protects not only the opposing party from unwarranted harm but also the client from the long-term consequences of frivolous or malicious litigation, including adverse orders, and judicial censure. By taking a principled stand, the Bar acts as a crucial filter, preventing the legal system from being overwhelmed by abuse masquerading as enforcement. Such self-regulation strengthens public faith in the profession, ensures that judicial time is reserved for genuine disputes, and reinforces the foundational idea that law is a means of justice, not a weapon of convenience. In this sense, the ethical vigilance of lawyers is not ancillary to justice, it is indispensable to it. When they do not do so, the chasm alluded to above widens. Society also must match institutional reform with moral awakening. The intent and object of these legislations must be at the forefront when a person wishes to lodge a complaint thereunder. The misuse of these laws is a mirror to the opportunistic and self-centered view that pervades the application of law. It is only through discipline, integrity and courage that these problems can be remedied and rooted out. Any legislative amendment or judicial direction will remain lack-luster without this deeper change.

We have referred to certain instances of the High Courts noting the misuse/misapplication of the POCSO Act, somewhat in line with the indices appended to the impugned judgment as also its progenitors.

Considering the fact that repeated judicial notice has been taken of the misuse of these laws, let a copy of this judgment be circulated to the Secretary, Law, Government of India, to consider initiation of steps as may be possible to curb this menace inter alia, the introduction of a Romeo – Juliet clause exempting genuine adolescent relationships from the stronghold of this law; enacting a mechanism enabling the prosecution of those persons who, by the use of these laws seeks to settle scores etc.

We have referred to certain instances of the High Courts noting the misuse/misapplication of the POCSO Act, somewhat in line with the indices appended to the impugned judgment as also its progenitors. Considering the fact that repeated judicial notice has been taken of the misuse of these laws, let a copy of this judgment be circulated to the Secretary, Law, Government of India, to consider initiation of steps as may be possible to curb this menace inter alia, the introduction of a Romeo – Juliet clause exempting genuine adolescent relationships from the stronghold of this law; enacting a mechanism enabling the prosecution of those persons who, by the use of these laws seeks to settle scores etc.

Conclusion

20. In that view of the matter, we pass the following order:

(a) The appeal is allowed. The directions issued in the impugned judgment are set aside.

(b) In view of ‘III)’ as extracted in para 5.6 as also in view of their intrinsic connection, such effect will extend to Aman (supra) and Manish (supra)

(c) The bail granted in terms of these judgments and orders, is left undisturbed in view of the other factors considered by the learned Single Judge subject to judicial review, if any.

(d) Insofar as the cases listed in the appendices to these judgments are concerned, this Court refrains from making any comment. The effect of this judgment will be prospective and shall not therefore, impact negatively, any of those cases wherein, following the procedure laid down in the impugned judgment or its progenitors, bail has been secured.

(e) The Registrar (Judicial) is directed to dispatch forthwith a copy of this judgment to the learned Registrar General, High Court of Judicature at Allahabad, for necessary follow-up action, as also information to the Trial Courts.

List of Judgments discussed

Directly Involved/Impugned Judgments

• Aman @ Vansh v. State of U.P., 2024 SCC OnLine All 1618 (Overturned)
• Monish v. State of U.P., 2023 SCC OnLine All 2577 (Overturned)

On Age Determination (Victims & Offenders)

• Jarnail Singh v. State of Haryana, (2013) 7 SCC 263
• Abuzar Hossain @ Gulam Hossain v. State of West Bengal, (2012) 10 SCC 489
• Parag Bhati (Juvenile) v. State of U.P., (2016) 12 SCC 744
• Sanjeev Kumar Gupta v. State of U.P., (2019) 12 SCC 370
• Rishipal Singh Solanki v. State of U.P., (2022) 8 SCC 602
• Mukarrab v. State of U.P., (2017) 2 SCC 210
• P. Yuvaprak¹⁵ash v. State, 2023 SCC OnLine SC 846
• Rajni v. State of U.P., 2025 INSC 15
• Mahadeo v. State of Maharashtra, (2013) 14 SCC 637

On Bail Jurisdiction and Scope of Section 439 CrPC

• State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21
• Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281
• State v. M. Murugesan, (2020) 15 SCC 251
• Union of India v. K.A. Najeeb, (2021) 3 SCC 713
• Amlesh Kumar v. State of Bihar, 2025 INSC 12
• Union of India v. Man Singh Verma, 2025 SCC OnLine SC 456
• State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770
• Sangitaben Shaileshbhai Datanta v. State of Gujarat, (2019) 14 SCC 522

On Consensual Adolescent Relationships & Misuse of Law

• Satish alias Chand v. State of U.P., 2024 SCC OnLine SC 1234
• Sahil v. State NCT of Delhi, 2024 SCC OnLine Del 4567
• Jayantibhai Babulbhai Alani v. State of Gujarat, (2018) 18 SCC 765
• Just Rights for Children Alliance v. S. Harish, (2023) 10 SCC 555

Acts and Sections

1. Protection of Children from Sexual Offences (POCSO) Act, 2012

• Section 2(d): Defines a “child” as any person who has not completed eighteen years of age.
• Sections 7 & 8: Concern the offences and punishments for sexual assault, which were the primary charges in the subject FIR.
• Section 27: Mandates that the medical examination of a child victim must be conducted in accordance with Section 164-A of the CrPC.
• Section 29: Creates a legal presumption of culpable intent against the accused once foundational facts are established.
• Section 34: Specifies that if a question arises regarding the age of a child, it shall be determined by the Special Court.

2. Juvenile Justice (Care and Protection of Children) Act, 2015

• Section 9: Sets out the procedure for a Magistrate to follow when a person brought before them is claimed to be a child.
• Section 94: Establishes the mandatory statutory hierarchy for age determination:
  1. Date of birth certificate from the school or the matriculation/equivalent certificate.
  2. Birth certificate given by a corporation, municipal authority, or panchayat.
  3. Medical/Ossification test: This is only permitted in the absence of the above documents.

3. Code of Criminal Procedure (CrPC), 1973

• Sections 161 & 164: Relate to the recording of statements by the police and the Magistrate during the investigation.
• Section 164-A: Governs the medical examination of a rape victim, requiring the report to include the person’s age.
• Section 439: Outlines the special powers of the High Court or Court of Session regarding the grant or cancellation of bail.
• Section 482: Preserves the inherent powers of the High Court to prevent abuse of the legal process.

4. Indian Penal Code (IPC), 1860

• Sections 363 & 366: Punishments for kidnapping and kidnapping or abducting a woman to compel her marriage.
• Section 376: Punishment for rape (contrasted with POCSO provisions in the judgment).
• Section 498-A: Punishment for cruelty by a husband or his relatives, mentioned in the context of the misuse of criminal laws.

5. Constitution of India

• Article 21: The right to life and personal liberty, which the Court noted must be balanced with statutory procedures.
• Articles 131 & 136: Used by the Court to explain the differences between original and appellate jurisdiction.

Party

The State of Uttar Pradesh versus Anurudh & Anr - Criminal Appeal No. 163 of 2026 (@Petition for Special Leave to Appeal (Crl.) No. 10656 of 2025) - 2026 INSC 47 - January 9, 2026 His Lordship Mr. Justice Sanjay Karol and His Lordship Mr. Nongmeikapam Kotiswar Singh.