Bombay HC says girl acted of free will, grants bail in Pocso case
The Bombay high court (HC) has granted bail to a 25-year-old man who was in jail since April 2018 for raping a 14-year-old girl on grounds that the victim’s conduct indicates she left her home of her own free will and “she had surrendered to the physical desires of the applicant out of her love and affection for him”. The order was passed by justice Sandeep Shinde on January 9.
The incident took place on April 18, 2018, when the minor girl, a resident of Malad, left her home at 1am on the pretext of going to the toilet. When she did not return, her father filed a complaint with the police. Meanwhile, according to a statement given by the girl, she and her boyfriend travelled by train to various places including Mahabaleshwar and Bhusawal in Maharashtra, and Delhi, before reaching Varanasi in Uttar Pradesh, their home town.
There, the girl’s relatives convinced the couple to return to Mumbai, which they did on April 26. The man was arrested at Mumbai airport under various sections of the Protection of Children from Sexual Offences (POCSO) Act.
In her statement to the police a few days later, the victim said she had eloped with her boyfriend of her own free will and that he had not forced her to have sex with him. A medical test confirmed that the two were sexually active prior to the incident.
“The said description of facts do not even remotely suggest that the (bail) applicant had ever induced and/or forced the victim to leave her parents’ house,” the court observed.
Justice Shinde cited a Supreme Court order from 1965 (S Varadarajan vs State of Madras) to grant the man bail, but restricted him from living in the vicinity of the minor. The man’s lawyer said before the court that the minor was in love with her client and though he had not made any promises of marriage, she went with him, after which they had physical relations. She added that her client was in jail since April 2018 and was willing to cooperate with the investigators. Additional public prosecutor Avinash Kamkhedkar opposed the bail on the grounds that the victim was a minor and the accused was booked under the POCSO Act which does not allow bail to perpetrators of crime against minors. The court disagreed.
Senior advocate and women’s rights activist Flavia Agnes told HT on Monday that such an order would set a wrong precedent for perpetrators of sexual crimes, as there is no way to stop them from enticing more minors once they are out on bail. “Though the minor may have gone with the accused of her own free will, how can it be assumed that she understands the ramifications of her actions? Though the order restrains the accused from meeting the victim, there is no restraint on him from enticing other minors,” Agnes said.
Senior advocate Dr Sujay Kantawala said a general assumption cannot be made about the applicant, as each case is different. “POCSO has stringent conditions, but the voluntary conduct of the minor victim, prima facie, weighed in favour of the accused as she had voluntarily had sexual intercourse. The court has correctly imposed strict conditions while granting bail, however, it is critical to ensure that these conditions are not violated.”