Age Of Consent And Anticipatory Bail Under The POCSO Act

The POCSO^[1] was brought in response to India signing the UN Convention on Child Rights^[2]. It includes provisions on sexual harassment, human trafficking, child pornography, etc., and punishments for each head fluctuating from 10 years' rigorous imprisonment to imprisonment for life and fine or both. Needless to say, the age of sexual consent is a tremendously important subject matter as it has a pivotal part in governing the exact type of relationship between girls and boys of teenagers.^[3] There exists numerous cases where trial and appellate court judges face myriad difficulties in examining matters similar to consensual teen sex. There are cases where persons between 16 yrs. to 18 yrs. are engaged in love affairs and after some time they turn out to be prosecuted for an offense under the POCSO Act.^[4] Often such offenses ensnared in opposition to juveniles who become duped to the Act at such a tender age without having an understanding of the implications of the gravity of the offense.^[5] Since its enactment in 2012, the primary objective of the POCSO was to save minors from sexual offenses, abuse, and exploitation and to provide severe punishment for any person found guilty of committing sexual offenses against children.^[6] The gravity of the offenses under this Act and the objective it hunts for cannot be overstated. Nonetheless, it is vital for the Courts to entice a fine link that defines the conduct that will not come under the purview of the POCSO Act, rightfully in a way to quest that, if it did act rashly or recklessly, then it might lead to unsalvageable harm to the status and living of the youth, whose steps will only be bland. An act that was enacted to save and serve righteousness or justice to the sufferers & survivors of adolescent exploitation has, in the hands of a few members of society, become a tool to resort to the unjustified or unreasonable use of legal proceedings and prevent the freedom of an individual by falsely implicating them in POCSO.^[7]

Liberty Of Boys Under Threat

We are not ignorant of the fact that liberty is a precious paragon for an individual. It is created at the substratum of the rights under the Constitution and puts the accent on the human rights principle. It is an innate right and is viewed as the syntax of life. Nobody likes to put his or her liberty under threat or negotiate it for all the treasures of the world. We know that our ancestors for centuries have fought for liberty, as the absenteeism of liberty affects a sense of emptiness. The sacredness of liberty is the swivel of any civilized society. It is a fundamental value on which the civilized society rests. It cannot be allowed to be petrified and restrained. Denial of the liberty of a person has a mammoth influence on his own mind and body as well.^[8]

A self-governing institution that is conjugal to the rule or strict letters of law cautiously guards the liberty of an individual. Society by its combined insights through the procedure established by law can pull out the freedom that is endorsed to a person when the person becomes a threat to the consciousness of the society and the prevailing societal order. Intonation on personal freedom should not be pyramided to such an extent that might bring chaos and anarchy to a society. No person should try to form a concavity in the stem of the social stream. It is totally impermissible.

Thus, while a person behaves in a discordant way shepherding in muddled matters that society explicitly prohibits then the person will surely come into the grip of the law and will be responsible for bearing legal consequences arising thereof. So, at this juncture, the Court has a duty. Having said that the Courts are not governed by social norms, mores, and values per contra the Courts are only governed by the strict letters of the law. Hence, Courts cannot abandon its inviolable compulsion and pass any order at its own whim or caprice. The Court has to be guided by the established norms of the law keeping in view whether the person is falsely implicated or not.

Romantic Relationships Between The Minors

There is a rapid rise in cases where a teenage girl and a boy have been eavesdropping on each other in a romantic relationship and after a certain period of time have become victims of offenses under the POCSO Act. These sorts of "teenage romances" often turn into consensual cohabitation, and the girl claims she is raped because of family pressure, societal fear, or when the boy shies away from engaging in marriage with the girl whom he is in love with. Since having sex with a minor is considered "statutory rape," these types of complaints are registered crimes.^[9]

In Ajay kumar v. State (NCT of Delhi)^[10], the Court emphasized that the aim of POCSO is to save kids below 18 yrs. from sexual exploitation and not to criminalize romantic relationships between consenting young adults. In many cases, couples run away from home carrying a sense of fear and opposition from their parents, leading to families prosecuting the man for the offense of rape under the POCSO Act and abduction having the intention in order to get married under the relevant provisions of IPC, 1860 or the Prohibition of Child Marriage Act 2006^[11] where the consent of the girl is vitiated and the boy is pigeonholed as a criminal even though the relationship may have had mutual consent.

Such cases lead to miscarriage of justice as they not only destroy the life of the accused but also impede the mental growth of adolescents by treating them as children incapable of independent decision-making. When a girl below the age of 18 yrs. is engaged in an affair with a young boy(s) or slightly older, it is always questionable to define such a relationship, although such a relationship might develop due to the consequences arising out of common virtuousness & and biological fascination. Such an affiliation can't be regarded as peculiar or alien to the bonding of the opposite sex.

Nevertheless, the real hurdles begin in those matters in which the age of the prosecutrix is less than 18 yrs. although she is in the capacity to give her consent to enter into the relationship and is mature by mind, tactlessly, they come into the grip of the POCSO when the relationship starts getting sour and goes beyond platonic limits, attracting the provision of POCSO confronting the perpetrator of offence, for which he faces a severe prison sentence of 7/10 years.

Moreover, there is also another seminal issue under POCSO wherein unfortunately the minor daughters are being used as baits to satisfy personal vendetta. Up till today, it is common knowledge that cross-complaints are filed cases under Sections 326, 307, or at the most under Section 302 of the Penal Code, 1860, or under Section 420 of the Penal Code, 1860. The fabric of the society has been shattered to such an extent that today, the dignity and honour of minor girls are also put at stake, just to satisfy their own vendetta. The parents are unthoughtful of the fact that girls have to grow up in the society with honour and dignity. They are exposed to social obloquy by their own parents and that would hamper the healthy growth of the personality of a woman in society.^[12]

Courts' Views On Anticipatory Bail

Grounds For Granting Anticipatory Bail-

In Deepak Yadav v. State of Uttar Pradesh^[13], the Court referred following considerations while granting anticipatory bail to the accused:

• If there exists any prima facie or reason to believe that the offense is committed by the perpetrator;
• gravity and nature of the offense or accusation made;
• What is the severity of the punishment if the accused is convicted;
• Whether the accused might flee or abscond in granted bail;
• character, behavior, means, position, and standing of the accused in society;
• probability of the repetition of the offense;

In the matter of XYZ v. State of Maharashtra^[14], the High Court of Bombay allowed bail to a 25-yrs-old man who was prosecuted for the offenses under Sections 3, 4, and 7 of the POCSO for engaging in consensual sexual intercourse with his 17-year-old partner. The Court highlighted that the girl was quite sure in her view and about her expectations from her own life, totally cognizant and all set to bear the costs arising out of the rapport that both were keeping with each other.

Now the mooting question here was whether there was a consensual relationship between the Prosecutrix and the Accused and the public prosecutor did not argue that the physical relationship with the prosecutrix was against her will and without her consent and was the sentence of the man under Sec(s). 4 and 6 of the POCSO Act and Section 376 is actionable? The Court further accentuated that sexual autonomy includes the right to desired sexual activity as well as the right to protection from undesired sexual aggression. Human sexual pride could only be considered wholly respected when both aspects of adolescent rights are recognized.

Calcutta High Court in the matter of Ranjit Rajbanshi v. State of West Bengal^[15] granted bail to a 22-year-old boy who was prosecuted for the offense u/ S 376 of the IPC and Sec. 4 of the POCSO for having consensual sex with the 16-and-a-half-year-old victim. The Court emphasized that the law is very clear in defining 'Child' under POCSO. By virtue of Sec. 2(d) of the Act any individual who is less than the age of 18 yrs. is considered to be a Child under the law, but to sentence an individual for offenses like penetrative sexual assault, the psyche, maturity, and previous conduct of the victim vis-à-vis the accused also attain some relevance.

In Imran Iqbal Shaikh v. State of Maharashtra^[16], the Bombay High Court allowed the bail application of the 22-year-old accused who was prosecuted for the offense u/ S 376 IPC and Sec. 4 of the POCSO. The Court highlighted that it is true that the prosecutrix is a child within the meaning of Sec. 2 (d) of the Act. The complainant was too a teenage boy who was 22 years old when the offense was committed. The statement of the first informant prima facie suggested that the relationship was consensual. It is to be noted that the POCSO Act has been legislated to prevent teenagers especially children from sexual offenses, sexual aggression, etc., and includes strict punitive provisions to protect interests and welfare of children. The goal has never been to give punishment to minors who are in a passionate relationship made through consent and label them as hardcore criminals.

Supreme Court in Ansaar Mohammad v. State of Rajasthan and Another^[17] when granting preliminary bail to the accused pursuant to § 376(2) (n) of the implementing regulation noted that the complainant was in a serious affair with the boy for the last four years. Prosecutrix was 21 yrs. old when the relationship started. In view of the said fact, the complainant willingly stayed with the complainant and maintained a relationship. Therefore, if the relationship does not work, it can't be a reason for filing an FIR for an offense u/Sec. 376(2)(n) of the implementing regulation. Consequently, the Court not only allowed the said appeal but also set aside the High Court's order, and the accused was directed to be released on bail as per the satisfaction of the competent authority.

Bombay High Court again in Bablu Jumman Shaikh v. State of Maharashtra, granted anticipatory bail to the accused prosecuted for the offense under Sec. 376 of the IPC and pointed out that the lower Court held that the married Petitioner had a relationship with the first informant against her will and without her consent made a false promise of marriage. The records showed that the Applicant and the first informant, both adults, were acquaintances. Especially WhatsApp, chats, messages, and materials on record prima facie showed that the first informant married the Appellant not only after the alleged date of the incident but also after lodging the FIR. Therefore, the relationship seems to be consensual. In view of the above, no proceedings for remand were instituted.

Delhi High Court in Anshuman v. State^[18] highlighted that the Courts can exercise its inherent power to quash the proceedings on account of peculiar facts in order to secure the ends of justice and to prevent abuse of the process of the Court. Taking into account that the petitioner and respondent No. 2/complainant have married each other and are living together in a happy and peaceful matrimony and the fact that the respondent No. 2/complainant herself is taking the initiative and stating that she does not wish to pursue the present complaint on account of the amicable settlement arrived between the parties. This Court considers that continuation of the present proceedings will serve no useful purpose as the chances of conviction would also be remote given the parties have settled, are married and do not wish to pursue the complaint.

Law Commission Of India's Report, 2023

The third option of injunctive relief seems to strike a delicate balance between addressing this problem and protecting children from sexual exploitation at the same time. Intercourse between 16-18-year-olds cannot be automatically criminalized and a better approach would be to implement a limited Court order in sentencing. Such a decision by a special court can be used in cases where a child over the age of 16 has actual consent to the intended act. It must also ensure that such powers are exercised in a manner that is managed and insulated from possible abuse.

In this context, it is up to the Court who determine when such discretion will be exercised and by whom. Only an expert judgment prepared by the Court(s) can really determine whether the consent of child in question is indeed free from any violence, deception, fraud, or undue influence. This requires proper investigation and evidence to determine whether a reduced sentence is warranted. The apprehension of broad judicial decisions impeding justice and applying gender stereotypes is real and has been pointed out by the Supreme Court in various judgments e.g. in XYZ v. State of M.P.^[19] Therefore, it was argued that the Special Court's discretion to determine permission and jurisdiction, if it is exercised at all, must be limited and guided to prevent abuse.

Whether or not there is genuine consent cannot be left totally to the agency involved in the investigation, as the risk of misuse and abuse is greater in such cases. Further, to ensure that there are no unnecessary prosecutions or protracted trials, the current system of investigation and adjudication must be strengthened and improved to ensure a speedy trial under the POCSO Act. In the second category, in cases where the child is over 16 years old and the adult is considered to have mutual consent, it is difficult to confirm the consent of the child, even more, difficult if it is an adult-child relationship.

The Court did not recognize predatory and exploitative behavior where adults take advantage of the child's positive feelings towards them and label them consensual. There are nuances of power inequality that need to be carefully considered. Due to factors such as age difference and inequality, the balance of power in adult-child relationships becomes very difficult, and as a result, exploitation can also occur in adolescent relationships. There are cases where the age difference has been considered in court, but no one has considered whether the child's "consent" is the actual consent. Therefore, while relative exemptions are considered sufficient to resolve the current situation, the Council believes that the difference in the age of the child victim and the accused is a relevant factor in such romantic situations. must be carefully considered by the court.

Whether Sexual Offenses Cases Against Minors Be Quashed Upon Settlement?

Madras High Court in Vijayalakshmi and Anr. v. State and Anr.^[20] quashed the criminal proceeding initiated against the accused under the POCSO on the grounds of an amicable compromise of the disputes between both parties. The Court held that POCSO was not enacted to punish a teenage boy merely engaging in a relationship with a girl who is necessarily under 18 yrs. Furthermore, the Court highlighted that voluntary sexual intercourse cannot be considered an offense and will not be covered under the POCSO. “Penetration” by virtue of POCSO includes an “affirmative and sole act” by the perpetrator, and when there is consensual participation in intercourse with passion does not necessarily mean penetration by itself, a unilateral act on the part of the perpetrator rather it can also be an affirmative action between both the prosecutrix and the accused arising out of their own desire.

As we know, it is a settled principle in law that although a person less than the eighteen years of age is not in the capacity to do a contract, he/she can only be a beneficiary of one. In other words, only parents or guardians have the competency to enter into a contract on the part of the minor if it is in the best interest of them. The very term 'best interest of the child' primarily refers to the pondering that Courts often take on while deciding what services, actions, and orders are in the best interest of a child.

Thus, Courts while entertaining the petitions moved by the parents or guardians of the victims of the sexual assault with a view to quashing the criminal proceedings initiated by the prosecutrix against the accused on the grounds of amicable settlement of the disputes mostly focus on whether the allegations made by the prosecutrix prima facie constitute an offense under the IPC or POCSO and to what extent the continuance of proceeding will serve the best interest of the parties especially the minors involved in the case.

Before quashing any criminal proceeding the Courts remain of the view whether awarding punishment to a minor and putting him behind bars will serve any purpose. If boys at such a young age are sent to jail, they might associate with hardened criminals which will surely affect their mental as well as physical well-being. Therefore, Courts usually shy away from giving punishment to minors when they are engaged in a consensual physical relationship and wish to culminate the criminal proceedings by amicable settlement of the disputes.

There are multiple incidents where the couple elopes from their respective homes and gets married and consummate marriage. These kinds of incidents keep occurring on a regular basis even in the 21^st century, especially in small villages, town, and sometimes in cities. When the parents or family file any complaint against the boy, the FIR is registered for offenses like kidnapping and different offenses under the POCSO. Consequently, after the FIR is registered, perpetually the boy comes into the grip of the police when the arrest is made, and after that, his young flourishing life comes to a grinding halt. The vittles of the POCSO Act, the way it is used in contemporary times, will certainly mark the acts of the accused an offense because of its strict nature.

A teenage boy stuck in a state of affairs of this kind will simply don't have any protection if the felonious matter is taken to its rational stop. Chastising a teen boy and branding him as a criminal who enters right into a dating with a minor female by way of treating him as a lawbreaker, turned into no manner the proper of the POCSO Act. An adolescent boy and woman who are in the grips of their hormones and natural modifications and whose decision-making capability is yet to absolutely expand must basically admit the help and steerage in their mother and father and the society at big.

These incidents must no way be perceived from a grown-up's factor of view and such know-how will in fact cause a loss of empathy. An adolescent boy who's transferred to captivity in a case of this nature could be foxed in the course of his existence. It's excessive time that the legislature takes into attention cases of this nature involving youngsters worried about connections and fleetly brings in necessary adjustments under the Act. The legislature has to keep pace with the changing societal requirements resulting in essential changes in regulation, in particular in a strict regulation just like the POCSO Act.

Thus, on profound attention to the floor actualities, the definition of 'Child' in Section 2(d) of the POCSO Act may be readdressed as Sixteen years as opposed to eighteen years. Any consensual coitus subsequent to the age of sixteen years of fleshly contact or confederated acts may be ignored from the exhausting vittles of the POCSO Act and similar sexual attack, if it's so described can be tried beneath the similarly liberal provision, which can be brought within the Act in itself and to be able to extricate the instances of teenybopper courting after sixteen instances, from the cases of sexual aggression on kids below sixteen years. The Act may be amended to the extent that the age of the perpetrator ought not to be more than five years or so.

Views are personal.