The Delhi High Court, while granting bail to a 21-year-old man accused of raping a minor, expressed its concern over the “unfortunate practice” of police filing of cases under the Protection of Children from Sexual Offences (POCSO) Act at the behest of the girl’s family who posed objection towards the relationship.
While deriding the “trite” practice, the court also mentioned that the petitioner was only 21 and had a “complete life ahead of him”, the Bar and Bench reported.
Justice Subramonium Prasad, reading out the bail order, said, “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 law…The rigor of the law is therefore being misapplied and subsequently misused. The short question which arises is as to whether the petitioner should be granted bail or not.”
Highlighting the malpractice of abuse of law, the court said, “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.”
According to the prosecution, in 2020, the accused had raped the complainant by intoxicating her, leaving her pregnant from the alleged assault. However, defense counsel argued that the complainant and his client were in the same school and were in a “consenting friendship”.
The accused’s counsel argued that the complainant’s family was opposed to it and as a result filed a case against the man.
The prosecution objected to the granting of bail, arguing that the girl was only 16 whereas the accused was 20-year-old at the time of the alleged crime.
The complainant submitted that the charges were very serious, involving rape, administering an adulterated substance under the IPC and aggravated sexual assault under the POCSO Act.
The Court said, “a photograph categorically pointed towards a relationship between the two” and the discrepancies in the statements given at the time of the recordings of the medico-legal case and the FIR besides her statement before the magistrate – had “tilted the balance” towards the grant of bail to the man.
Hence the bench said that it “cannot overrule their friendship as both of them were students of the same school, and the love between both of them.”
The court further noted that the FIR in the case had been filed at the insistence of the survivor’s family, which was “perhaps embarrassed on finding that the complainant had become pregnant and if this was known in the neighbourhood there would be a social backlash that the family would encounter.”
It added, “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.”
“Looking at the respective ages of the petitioner and the complainant both were romantically attracted towards each other and their relationship was consensual. The photographs annexed in the petition show that the petitioner and the complainant were romantically involved with each other, which is a common phenomena in adolescence/young adults. It is also clear to the Court that the pregnancy of the complainant was terminated after lodging of the FIR,” the order stated.
The court held that the petitioner being a young 21-year-old man, has a full life ahead cannot be deprived of his liberties. “The petitioner has been in jail for over 12 months and is being subjected to be in the company of hardened criminals. This would do more harm than good to a common man of 21 years of age. In the facts and circumstances of the case, this Court thinks that the petitioner’s case should be considered adequately,” it observed.
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