Don’t Criminalise 4-Year-Old Accused of ‘Rape’: Legal Experts

The four-year-old accused of the rape of his classmate can’t be prosecuted, say legal experts.

The girl kept complaining about the pain in her lower abdomen. Image used for representational purpose.

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A four-and-a-half-year-old boy has been accused of raping his classmate, within the premises of a private school in Delhi. The boy reportedly inserted his finger and a sharpened pencil into his classmate, injuring her private parts.

Hindustan Times reports that despite the mother’s call for strict action, legal experts, citing section 82 of the Indian Penal Code (IPC), have stated that any child below the age of seven cannot be prosecuted.

The law provides complete immunity from prosecution to children below the age of seven. Registering an FIR is impermissible and not correct. What is the point of registering a case when you can’t prosecute someone and can’t proceed anywhere.

Aishwarya Bhati, a Supreme Court lawyer told <i>Hindustan Times</i>

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She added that this law was not subject to scrutiny, and worked as an absolute exception. This is due to the natural presumption that “such a young child cannot have a criminal mind”.

The reason behind this law is based on the assumption that children below the age of seven do not understand sexual behaviour, or the difference between a ‘right touch’ and a ‘wrong touch’.

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We must understand that it is absolutely not possible for a four-year-old to understand sexual behaviour. Is there a possibility of a sexual need being fulfilled in his case? Absolutely not.

Samir Parikh, director, department of mental health and behavioural sciences, Fortis Healthcare.

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The Police had earlier lodged an FIR, but had been unsure about how to continue running criminal proceedings against a four-year-old. Their next call of action, seemed to be examining in detail the exemption clause under the IPC and according the investigators as per the law.

However, legal experts are of the opinion that the police did not even have the grounds to lodge an FIR.

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The FIR is only an intimation of an offence. At the initial stage, you do not know who actually committed the offence, so you need a prima facie complaint. But there can’t be a charge sheet in this case if it is indeed the boy involved in the offence. The matter will be closed.

Jayant Bhushan, a senior advocate at the Supreme Court

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Going by Bhushan’s statement, as well as that of others like Bhati, it seems like the case will be closed after the investigations are over.

(With inputs from Hindustan Times.)