Bail to the accused under POCSO Act: The intention of POCSO was to protect children below the age of 18 years from sexual exploitation. It was never meant to criminalise the consensula romantic relationship: DELHI HIGH COURT

The intention of POCSO was to protect children below
the age of 18 years from sexual exploitation. It was never meant to
criminalize consensual romantic relationships between young adults.
However, this has to be seen from facts and circumstances of each case.
There might be cases where the survivor of sexual offence, may under
pressure or trauma be forced to settle.

IN THE HIGH COURT OF DELHI AT NEW DELHI

  • BAIL APPLN. 2729/2022
    ….. Petitioner
    Through: Mr. Omkar Sharma, Adv.
    versus
    STATE GOVT OF NCT OF DELHI AND ANR. ….. Respondent
    Through: Mr. Ajay Vikram Singh, APP
    SI Sarita, PS Baba Haridas Nagar
    CORAM:
    HON’BLE MR. JUSTICE JASMEET SINGH
    O R D E R
    % 20.10.2022
    On the last date of hearing, I had directed the petitioner to file a copy
    of the order of the High Court of Punjab and Haryana at Chandigarh in the
    present matter.
    The order has been filed which shows that the Ms. „A‟ i.e., the
    daughter of the complainant had approached the High Court of Punjab and
    Haryana stating that she had married the applicant out of her own will and
    that her parents were threatening to cause harm to her and her husband. As a
    result of which, the High Court of Punjab and Haryana was pleased to direct
    the respondent Police to provide adequate and appropriate protection to Ms.
    „A‟ and her husband.
    In the present case, the FIR has been filed by the father of Ms. „A‟
    stating that his daughter aged about 17 years was married on 30.06.2021 to
    one, . On 27.10.2021, Ms A came to the house of the
    Applicant and on 28.10.2021, Applicant took Ms. „A‟ to Punjab andperformed marriage with her. Hence the FIR.
    In my opinion the intention of POCSO was to protect children below
    the age of 18 years from sexual exploitation. It was never meant to
    criminalize consensual romantic relationships between young adults.
    However, this has to be seen from facts and circumstances of each case.
    There might be cases where the survivor of sexual offence, may under
    pressure or trauma be forced to settle.
    The Madras High Court in Crl.O.P.No.232 of 2021 and
    Crl.M.P.No.109 of 2021 titled Vijayalakshmi vs State, has also observed that
    “11. There can be no second thought as to the seriousness of
    offences under the POCSO Act and the object it seeks to achieve.
    However, it is also imperative for this Court to draw the thin line
    that demarcates the nature of acts that should not be made to fall
    within the scope of the Act, for such is the severity of the sentences
    provided under the Act, justifiably so, that if acted upon hastily or
    irresponsibly, it could lead to irreparable damage to the reputation
    and livelihood of youth whose actions would have been only
    innocuous. What came to be a law to protect and render justice to
    victims and survivors of child abuse, can, become a tool in the
    hands of certain sections of the society to abuse the process of
    law”
    This Court in Dharmender Singh v. State (Govt. of NCT) BAIL APPL.
    1559/2020, granted bail to the accused while taking into consideration the
    possibility of a reciprocal physical relationship between the accused and the
    minor victim. It has also laid down the parameters that are to be followed
    when considering bail of a person accused under the POCSO Act, it has held
    as follows77. Though the heinousness of the offence alleged will beget the length of sentence after trial, in order to give due weightage to
    the intent and purpose of the Legislature in engrafting section 29
    in this special statute to protect children from sexual offences,
    while deciding a bail plea at the post-charge stage, in addition to
    the nature and quality of the evidence before it, the court would
    also factor in certain real life considerations, illustrated below,
    which would tilt the balance against or in favour of the accused :
    a. the age of the minor victim : the younger the victim, the
    more heinous the offence alleged;
    b. the age of the accused : the older the accused, the more
    heinous the offence alleged;
    c. the comparative age of the victim and the accused : the
    more their age difference, the more the element of perversion in
    the offence alleged;
    d. the familial relationship, if any, between the victim and
    the accused : the closer such relationship, the more odious the
    offence alleged;
    e. whether the offence alleged involved threat, intimidation,
    violence and/or brutality;
    f. the conduct of the accused after the offence, as alleged;
    g. whether the offence was repeated against the victim; or
    whether the accused is a repeat offender under the POCSO Act or
    otherwise;
    h. whether the victim and the accused are so placed that the
    accused would have easy access to the victim, if enlarged on bail :
    the more the access, greater the reservation in granting bail;
    i. the comparative social standing of the victim and the
    accused : this would give insight into whether the accused is in a dominating position to subvert the trial;
    j. whether the offence alleged was perpetrated when the
    victim and the accused were at an age of innocence : an innocent,
    though unholy, physical alliance may be looked at with less
    severity;
    k. whether it appears there was tacit approval-in-fact,
    though not consent-in-law, for the offence alleged;
    l. whether the offence alleged was committed alone or along
    with other persons, acting in a group or otherwise;
    m. other similar real-life considerations.
    The above factors are some cardinal considerations, though
    far from exhaustive, that would guide the court in assessing the
    egregiousness of the offence alleged; and in deciding which way
    the balance would tilt. At the end of the day however, considering
    the myriad facets and nuances of real-life situations, it is
    impossible to cast in stone all considerations for grant or refusal
    of bail in light of section 29. The grant or denial of bail will
    remain, as always, in the subjective satisfaction of a court; except
    that in view of section 29, when a bail plea is being considered
    after charges have been framed, the above additional factors
    should be considered.”
    In the present case, I have interacted with Ms. „A‟ in the Chamber in
    the presence of learned APP.
    She states that she was married to one, Mr. but she does not
    wish to stay with him. At the time of marriage with the applicant on
    28.10.2021, she was an adolescent and around 17 years of age (her date of
    birth is 01.10.2004).
    She further states that she got married to the applicant out of her ownfree will and without any undue influence, threat, pressure or coercion and
    even today wants to stay with the applicant.
    Thus, this is not a case where the girl was coerced into the
    relationship with the boy. In fact, Ms. „A‟, herself went to the applicant‟s
    house and asked him to marry her. The statement of the victim makes it
    clear that this is a romantic relationship between the two and that the sexual
    act involved between them was consensual. Although the victim is minor
    and hence her consent does not have any legal bearing, I am of the opinion
    that the factum of a consensual relationship borne out of love should be of
    consideration while granting bail. To ignore the statement of the victim and
    let the accused suffer behind jail, in the present case, would otherwise
    amount to perversity of justice.
    I am cognizant of the fact that the proceedings before me are of grant
    of bail and not of quashing of FIR. It is not a case where the slate of
    applicant is wiped clear. In the circumstances of the present case, the
    applicant is entitled to bail for the reasons enumerated above.
    In this view of the matter, applicant shall be released on bail on the
    following terms and conditions:-
    i. The applicant shall furnish a personal bond and surety bond in the
    sum of Rs. 10,000/- each, to the satisfaction of the Jail
    Superintendent;
    ii. The applicant shall appear before the Court as and when the matter
    is taken up for hearing;
    iii. The applicant shall join investigation as and when called by the I.O
    concerned;
    iv. The applicant shall provide his mobile number to the InvestigatingOfficer (IO) concerned, which shall be kept in working condition
    at all times. The applicant shall not switch off, or change the same
    without prior intimation to the IO concerned, during the period of
    bail;
    v. In case the applicant changes his address, he will inform the IO
    concerned and this Court also;
    vi. The applicant shall not leave the country during the bail period and
    surrender his passport, if any, at the time of release before the Jail
    Superintendent;
    vii. The applicant shall not indulge in any criminal activity during the
    bail period;
    The application stands disposed of in the aforesaid terms.
    JASMEET SINGH, J
    OCTOBER 20, 2022 / (MS)

Advocate Anoop Verma

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