Gujarat High Court Quashes 2010 Rape FIR Lodged Against Minor, Says Police Didn't Know Of S.83 IPC Applicable On Children Between 7-12 Yrs

The Gujarat High Court has quashed a 2010 FIR lodged against an accused who was a minor at the time of the alleged incident, noting that the concerned police authorities must not have had knowledge of Section 83 of IPC, which is applicable on children between 7-12 years.

Justice JC Doshi in his order referred to Section 83 IPC which states that "nothing is an offence" which is done by a child above 7-years-of age and under 12-years-of age, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion.

The court said:

"The FIR itself records that the petitioner was 11 years old at the time of incident. It is not the case of the prosecution that forensic test was carried out at the relevant time that whether the petitioner was though 11 years old at the time of alleged incident, was mature enough to understand the consequences of the alleged act. According to this Court, 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. Under the circumstances, present petition requires consideration". 

The plea sought quashing of a 2010 FIR for the offences punishable under IPC Sections 376(rape), 354(Assault or criminal force to woman with intent to outrage her modesty), 504(Intentional insult with intent to provoke breach of the peace), 114(Abettor present when offence is committed)  lodged against the accused who was 10 and half years old at the time of the alleged incident. 

The petitioner's counsel said that even if the FIR in question is taken as gospel truth, the petitioner was aged 10 and 1/2 years at the time of alleged incident. It was argued  that the birth date of the petitioner is 26.12.1999 as per birth certificate. It was submitted that the incident was alleged to have taken place between 10.5.2010 and 23.5.2010 and therefore, the petitioner cannot be more than 11 years at the time of alleged incident. 

He referred to Supreme Court's decision in Hiralal Mallick Vs. State of Bihar, (1977) to submit that if the accused is less than 12 years, he cannot be treated as accused inter alia on the ground of his lack of majority. The Supreme Court in this case had held, "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 counsel for the  complainant submitted that allegation levelled in the FIR is of serious nature and whether the petitioner is mature or understanding the seriousness of the offence can be tested during trial and the FIR cannot be quashed on the touchstone of reading section 83 of the IPC. 

The court thus quashed the FIR and directed concerned investigating officer and trial court to  delete the petitioner's name from police records, investigation papers aswell as Court records to protect petitioner's identity. 

Case title: ABC v/s  STATE OF GUJARAT & ANR

Click Here To Read/Download Order 

Citation: 2025 LiveLaw (Guj) 119