Delhi 4-year-old booked for rape: Legal experts say no grounds to register case

A case was registered against the boy on November 18 after the mother of the four-year-old girl complained that he allegedly sexually assaulted her.

After booking a four-year-old for allegedly sexually assaulting his classmate at a west Delhi school, Delhi Police on Thursday remained undecided about to proceed with the case even as legal experts questioned the grounds of filing the FIR.

The Indian Penal Code says a child aged below seven years cannot be prosecuted. (File Photo)

Police said they went ahead and filed the FIR against the child only because they were following the “policy of registering a FIR without delay”.

“The FIR can be cancelled, but there should be no delay in lodging a complaint. The case was registered only after proper legal consultation. We were thoroughly professional in our work while staying sensitive to the fact that the victim as well as the suspect were small children,” Dependra Pathak, Delhi Police’s chief spokesperson told Hindustan Times on Thursday.

The Indian Penal Code says a child aged below seven years cannot be prosecuted. “Nothing is an offence which is done by a child under seven years of age,” the IPC section 82 says.

A case was registered against the boy on November 18 after the mother of the four-year-old girl complained that he allegedly sexually assaulted her. The complaint said he allegedly used his finger and a pencil to assault her.

Legal experts, however, said there was just no grounds to even register a FIR. “The law provides a complete immunity from prosecution to children before the age of seven. Registering a 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,” said Aishwarya Bhati, a Supreme Court lawyer who deals in crimes involving minors.

She said the law says anyone under the age of seven cannot have a criminal intention. “This is not subject to scrutiny, it is an absolute exception. This is because there is a presumption that such a young child cannot have a criminal mind,” she said.

If at all the police had to register an FIR, the boy should not have been named in the complaint, she said.

Jayant Bhushan, a senior advocate at the Supreme Court, too said that a child so young is not expected to know the difference between right and wrong, adding the case will be closed after investigation.

“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,” said Bhushan.