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Delhi HC grants bail to man facing charges of rape under POCSO Act, but says minor’s consent can’t be said to be valid

The complainant had alleged in the FIR that in June 2020, during the national Covid-19 lockdown, she had gone to her friend’s house to borrow books. On her way back, the accused stopped the complainant and caught hold of her and forcibly took her to the ground floor of his house and coerced her to drink a liquid laced with sedatives.

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The Delhi High Court recently granted bail to a 21-year-old man facing charges of rape under the POCSO Act on the complaint filed by a 17-year-old girl.

The single-judge bench of Justice Subramonium Prasad stated: “Looking at the respective ages of the petitioner and the complainant both were romantically attracted towards each other and their relationship was consensual.” On the issue of the age of the applicant/accused, the judge said, “This Court cannot overlook the fact that the petitioner (young man) is now only 21 having a complete life ahead of him. This Court also cannot overrule their friendship as both of them were students of the same school.”

The complainant had alleged in the FIR that in June 2020, during the national Covid-19 lockdown, she had gone to her friend’s house to borrow books. On her way back, the accused stopped the complainant and caught hold of her and forcibly took her to the ground floor of his house and coerced her to drink a liquid laced with sedatives.

According to the FIR, when the complainant regained consciousness, she found that she was lying down and the bedsheet was wet and her body was in pain. When she confronted her friend, he told her that since she was not adhering to his request of friendship, he had committed rape.

The FIR was lodged in August 2020 after the discovery that the girl was pregnant, resulting in the petitioner getting arrested. Subsequently, the petitioner had her pregnancy medically terminated.

Advocate Pradeep Rana, appearing for the petitioner, submitted the petitioner has been falsely implicated in the present FIR, adding that the complainant has been coerced by her family members to file the FIR as they objected to the consenting friendship of the complainant and the petitioner. 

Rana submitted that the petitioner is a 21-year-old pursuing his education via open learning mode from Delhi University and has deep roots in society.

APP Meenakshi Chauhan opposed the bail application stating even if the petitioner and the complainant were friends, and in a relationship, it would still attract the sixth clause under Section 375 of the Indian Penal Code, which states that having sexual intercourse with the consent of a girl below the age of 18 would still constitute rape and would be punishable. Furthermore, she contended that the complainant had been impregnated by the assault committed by the applicant, forcing her to medically terminate her pregnancy and causing mental trauma to the petitioner.

The High Court observed that the complainant had given 3 different statements and placed consideration on the girl’s statement that she does not intend to pursue the case any further and that she wanted to move on with her life.

“Consensual sex has been in legal grey area because the consent given by minor cannot be said to be a valid consent in the eyes of the law. What has become a trite and unfortunate practice is that the Police are filing POCSO cases at the behest of the family of a girl who object to her friendship and romantic involvement with a young boy. The rigour of the law is therefore being misapplied and subsequently misused,” the court said.

The Court stated that the age of the petitioner and the prosecutrix, the photograph which categorically pointed towards a relationship between the two and the discrepancies in the statements given at the time of the recordings of the MLC, the FIR and the statement under Section 164 CrPC are all mitigating factors which tilt the balance towards the grant of bail to the accused. 

The Court further stated that it seemed, as if the complaint has been filed on the insistence of the family, “in order to avoid the social embarrassment and to get the pregnancy medically terminated this FIR has been filed giving it the color of sexual exploitation and bringing it in the ambit of the POCSO Act which envisages the abolition of child abuse”. 

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