'Not Unusual That A Girl Of 16 Years Falls In Love With A Boy Aged 24 Years Or Vice Versa' : HP High Court Grants Bail In POCSO Case

The Himachal Pradesh High Court recently granted bail to a 24 year old youth, who was accused in a POCSO case for having sexual intercourse with a girl aged 16 years.

A single bench of Justice Anoop Chitkara noted that the accused, who has been under custody for over three months, was romantically involved with the girl. Even the girl "was bold enough to declare that she was in love with the accused", the Court observed.

"When her parents asked her to return home, she refused to go with thembecause she was in love with the petitioner. The girl's unequivocal declaration abouther passion for the boy is not an ordinary activity for a young girl in a Hindu rural society", the Court observed.

"The boy is aged 24 years, whereas the girl is aged 16. Even though the age gap between them is enormous, this is probably because of social background. Families arrange marriages in the Indian social setup. In such arrangements, mostly, the bride is younger than the groom, sometimes with a considerable age gap. The children also notice that their father is older than their mother. Such social settings might be a catalyst for a girl to fall in love with a more senior boy. Even otherwise, it is not unusual that a girl aged 16 years of age falls in love with a boy aged 24 years or vice versa. Love is indeed blind.

Undoubtedly, he should not have had coitus with the victim, but allegedly still, he went ahead with it. It is also beyond any comprehension that he should have refrained from caressing, fondling, and talking of the penetrative act. Undoubtedly, due to the lack of an appropriate curriculum on sex education in schools, people do not know what is legally prohibited. It is for the Executive to think about sex education. However, it is a policy matter for the policymakers to consider, and this Court refrains from commenting upon it", the Court further observed.

The Court noted that the age of consent for sex has been made 18 years with the enactment of the POCSO Act and that a child under 18 years of age cannot consent, then how much mature, intelligent, or informed she may be. It said:

"Until 19th June 2012, when the Government notified POCSO, and till 1st April 2013, when the Government notified IPC amendments, the age of consent was 16 years. It is common knowledge that today's generation is far ahead then what they were in the 20th century. Availability of smartphones and better access to internet has brought all knowledge instantly to their palms. Be that as it may, in a democracy, the Legislative wisdom reflects the people's will. In this backdrop, the Courts have to be overly concerned. When the legislature says that a child under 18 years of age cannot consent, then how much mature, intelligent, or informed a child maybe, she cannot consent".

The court observed that it is not a case of forcible sexual relationship; instead, the victim surrendered to the petitioner's physical desires out of her love and affection towards him. Therefore, the Court proceeded to allow his bail application.

"The victim's boldness to declare her passion towards the petitioner in the presence of her father and Police speaks volumes. Further, she also told them explicitly that she left her home out of her own free will and refused to go back with her father. These facts point out that the victim, being 16 years of age, though a minor, voluntarily left her home.Therefore, the rigors to reject bail and reasons to continue incarceration are reduced by the mitigating factors in the present case", the Court said.

The Court also remarked that people do not know what is legally prohibited due to the lack of an appropriate curriculum on sex education in schools.

"It is for the Executive to think about sex education. However, it is a policy matter for the policymakers to consider, and this Court refrains from commenting upon it", Justice Anoop Chitkara observed.

In this case, the girl's father had lodged the complaint before the Police that the accused kidnapped and raped his minor daughter. Based on this complaint, FIR was lodged against him and he was arrested. While considering the bail application, the court noted that neither S. 376 of the Indian Penal Code  (IPC), nor S. 6 of the Protection of Children from Sexual Offences Act (POCSO) create any restriction on grant of bail.

"If the legislature intended to bar bails altogether, then nothing had stopped them from making a similar bar as they put in place vide S. 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985, (NDPS) or for S. 438 under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, (SCSTPOA)", the court said. The court noticed that the girl had declared that she was in love with the accused. The bench made the following observations

"Kidnapping and rape are indeed very heinous offences. However, at the bail stage, the Court has to consider prima facie under what circumstances the offence is committed by the accused. Considering the same, the Court believes that the petitioner has made out a case for bail, and his further incarceration is uncalled for", the Court said..

Recently, the Madras High Court opined about the need to amend the POCSO Act to exempt the acts of adolescents entering into sexual relations with each other.

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