Bail denied to man in POCSO considering the consent of minor irrelevant

The Karnataka High Court has denied bail to a defendant accused of violating the Protection of Children from Sexual Offence (POCSO) Act. The defendant had argued that the underage victim had given consent and that there was no use of force involved. However, Justice V Srishananda emphasized that even if the victim had given consent, it would not be relevant under Section 3 of the POCSO Act, which is punishable under Section 4 of the same act. Therefore, the accused cannot be granted bail.

The accused, known as Bujji or Babu G, has been accused of violating multiple laws including Sections 4 and 6 of the POCSO Act, Sections 9 and 10 of the Prohibition of Child Marriage Act, 2006, and Sections 363, 372(2)(n), and 344 of the IPC. The prosecution alleges that on February 14, 2022, the accused, who is 23 years old, convinced the victim, who was only 16 years old, to go with him on the pretext of celebrating Valentine’s Day. They went to Nandi Hills, where the accused took the victim to a secluded area and raped her. Then, on April 2, 2022, the accused allegedly took the victim to a relative’s house, falsely representing her as an adult, and rented a place to live there.

The accused allegedly married the victim girl at Anjaneya Swamy Temple on April 3, 2022, and later had sexual intercourse with her on May 11, 2022. The victim’s mother filed a complaint with the police, leading to an investigation and the filing of charges against the accused under various laws.

The accused applied for bail before the special court, but his request was denied. He then appealed to the high court, claiming that there was no use of force in the case and that the necessary elements to charge him under Sections 4 and 6 of the POCSO Act were not present.

The accused’s defense heavily relied on the statement made by the victim girl under Section 164 of the Cr.P.C. before a magistrate. In the statement, the victim girl claimed that the accused tied a “Mangala Sutra” outside the Anjaneya Swamy Temple in Doddaballapur and that they had lived together as husband and wife, engaging in physical relations every alternate day.

The counsel representing the accused argued that the courts should take a liberal view and not penalize the accused for engaging in a consensual act with a mature victim girl.

The prosecution objected to the accused’s plea, arguing that the victim girl’s alleged consent was not valid in the eyes of the law since she is a minor. The bench considered Sections 3 to 6 of the POCSO Act and noted that the victim girl in this case is under 18 years old. Although the victim girl claimed in her statement under Section 164 of the Cr.P.C. that she was happy with the accused and was 16 years old, this may not necessarily attract a charge of aggravated penetrative sexual assault.

The prosecution objected to the accused’s plea, arguing that the victim girl’s alleged consent was not legally valid since she is a minor. The bench examined Sections 3 to 6 of the POCSO Act and acknowledged that the victim girl is below 18 years of age. It noted that in this case, the charge of aggravated penetrative sexual assault may not be applicable at first glance, especially considering the victim girl’s statement under Section 164 of the Cr.P.C. where she claimed to have been in a happy relationship with the accused and was 16 years old.

The court noted that according to the victim girl’s statement, she had willingly engaged in sexual activity with the accused every other day. This suggested that she had not resisted the act and had voluntarily participated in it. However, the court emphasized that the POCSO Act was designed to protect children from sexual assault, harassment, and pornography. The court pointed out that Section 3 of the POCSO Act does not mention anything about consent. This suggests that the legislature intended to make it clear that a child cannot give valid consent.

The court affirmed that a person who is under the age of 18 years cannot legally give consent to a physical relationship, as per the definition of a ‘child’ under Section 2(d) of the POCSO Act. It also stated that the argument made by the petitioner that the victim girl had given consent to the alleged sexual assault and there was no element of force, and hence the offences under Section 3 and 5 punishable under Section 4 and 6 of the POCSO Act do not apply, is not acceptable. The court further added that this cannot be considered at the stage of considering the bail application. The POCSO Act intends to protect children from sexual assault, harassment, and pornography, and the provision does not contemplate the concept of consent in the case of a child.

The court noted that cases involving love affairs may be treated differently, but physical relationships are not permissible in cases involving minors, as it would defeat the purpose of the POCSO Act. The court also rejected the petitioner’s argument that he would make efforts to marry the victim girl if granted bail.

The bench noted that although there have been instances where accused persons have been granted bail or FIRs have been quashed after the accused contracted marriage with the rape victim, such decisions go against established legal principles and the gravity of the alleged offenses cannot be overlooked. The court emphasized that the seriousness of the charges against an accused should be considered while deciding on bail or quashing FIRs, and past decisions should not be taken as precedents if they contradict these principles.

The bench cited the case of Daxaben v. State of Gujarat to emphasize that despite repeated rulings from the Hon’ble Apex Court, trial courts and sometimes high courts are still presented with pleas of settlement or compromise, particularly in cases of sexual assault where the accused offers to marry the victim in exchange for bail or quashing of the complaint. However, if such pleas were accepted as a norm, it would amount to compounding of non-compoundable offences by the court process, which goes against the intention of the legislature in enacting the relevant laws, according to the court.

According to the court, the grounds cited by the petitioner for bail are insufficient, given the objective of the POCSO Act. Even though the victim girl stated that the relationship was consensual, the court cannot accept the petitioner’s request for bail under Section 439 of Cr.P.C. The court emphasized that allowing bail on the grounds of settlement or compromise would contradict the intention of the legislature in enacting relevant statutes. The court, however, stated that the petitioner can file a new bail application in the future if there is a positive change in the case’s circumstances after the examination of material witnesses.

 

Source: https://www.livelaw.in/news-updates/karnataka-high-court-bail-pocso-case-minor-girl-consent-gospel-truth-bail-proceedings-225441