The Supreme Court in its latest order has noted that a ‘love affair’ between the complainant and the accused is not relevant when the girl is a minor.
The top Court on Monday set aside the bail granted to an accused under section 376, IPC and section 6, POCSO as prima facie it appears that the accused’s alleged refusal to marry would be extraneous for bail.
Case:
The bench noted that on 27 January 2021, an FIR was registered in District Ranchi inter-alia for offences punishable under section 376 of the IPC and section 6 of the POCSO Act. The bench said,
The complaint of the petitioner contains an allegation that when she was a minor, the second respondent had taken her to a residential hotel and had entered into sexual relations with her on the assurance of marrying her. The complainant further recites that the second respondent was refusing to marry her, that he had sent obscene videos to her father.
The application for anticipatory bail filed by the second respondent was rejected by the Special Judge (POCSO), Ranchi in February, 2021. Thereafter, the second respondent had surrendered and sought bail. The chargesheet was submitted before the special judge on 24 May 2021.
The bench of Justices Chandrachud and Surya Kant further recorded,
The application for bail has been allowed by the Single Judge of the High Court of Jharkhand. The reasons which have weighed with the Single Judge are contained in the following paragraph from the impugned order of August, 2021:
‘It appears from the statement under Section 164 Cr.P.C. as well as the averments made in the FIR that there was a love affair between the petitioner and the informant and the case appears to have been instituted only on the point of refusal of the petitioner to solemnise marriage with the informant.’
Submissions by Complainant Girl
Senior Advocate Anand Grover, for the appellant, submits that the date of birth of the appellant as recorded in the Aadhaar card is 1 January 2005. Thus, at the time the alleged offences are stated to have taken place, she was just about 13 years of age.
Having regard to the provisions of section 376 of the IPC and provisions of the POCSO Act, the reasons which have weighed with the High Court are ex facie extraneous and the application for bail could not have been allowed.
As reported by Livelaw, Mr. Grover had orally advanced in Court on Monday,
The accused was 20-years-old, so it is not like they were both minors when it happened. A 13-year old could not have given consent in law. It is statutory rape.
Unfortunately, the High Court says there was a love affair between the two and that the case was filed only when he refused to marry and grants bail.
Defense by Respondent (Accused Man)
The bench further recorded in its order that Advocate Rajesh Ranjan, for the second respondent, has placed reliance on the statement of the prosecutrix recorded under section 164 of the Cr. P. C. The bench recorded that he submitted that though the chargesheet has been submitted, there has been no recovery of the alleged obscene video, nor is there any medical evidence to indicate that the second respondent entered into sexual relations with the appellant.
Supreme Court
On the matter of video not being recovered, Justice Surya Kant had remarked orally,
Medical evidence and all is a matter of trial.
The bench was of the view that,
In our view, the High Court was manifestly in error in allowing the application for bail, particularly on the ground that from the statement under section 164 as well as the averments in the FIR, it appears that there was a ‘love affair’ between the appellant and the second respondent and the case was instituted only on the point of the refusal of the second respondent to solemnise marriage with the appellant.
The bench continued,
Once prima facie it appears from the material before the court that the appellant was barely 13 years of age on the date when the alleged offence took place, the ground that there was a ‘love affair’ between the appellant and the second respondent as well as the alleged refusal to marry may be circumstances against the grant of bail.
The bench thus rejected the bail and said,
Having regard to the age of the prosecutrix and the nature and the gravity of the crime, no case for the grant of bail was established. In its order granting bail, the circumstances which were borne in mind by the High Court are extraneous in nature, having regard to the provisions of section 376 of the IPC and section 6 of the POCSO Act.
We accordingly allow the appeal and set aside the impugned order of the High Court. Consequent on the setting aside of the impugned order of the High Court, the second respondent shall surrender forthwith.
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