Romantic relationship Cannot Be Lost Sight Of: Meghalaya High Court Grants Bail To Teenager In POCSO Case

The Meghalaya High Court on Monday granted bail to a teenager in a sexual assault case lodged against him under the provisions of Protection of Children from Sexual Offences Act (POCSO Act) after taking into consideration that the minor victim and the accused were in a romantic relationship and that there was consensual sexual intercourse.

Justice W Diengdoh observed,

"On perusal of the records, particularly the statement of the victim and the accused, prima facie it is apparent that there is a romantic relationship between the two and that the sexual act involved between them was one of consensual, notwithstanding the fact that in the case of an alleged victim being a minor, consent has no legal validity, however, this aspect of the matter cannot be lost sight of while a plea for grant of bail is being considered by the court."

The Court further observed that there is 'no denial of the fact' that a romantic relationship existed between the accused and the alleged victim resulting in the lodging of the FIR by the complainant who is the mother of the alleged victim. It is a matter of evidence as to whether the alleged act constitutes sexual assault as per the provision of the POCSO Act, the Court stated further. 

Reliance was also placed by the Court on the Madras High Court judgment in Vijayalakshmi & Anr. v. State wherein it was held that the POSCO Act did not intend to penalise teenagers in a relationship who consented to sexual acts between them. 

In the instant case, a case was registered against the accused under Sections 5 and 6 (penetrative and aggravated penetrative sexual assault) of the POCSO Act. It was contended that the accused and the victim were stated to be in a romantic relationship with each other.

Counsel for the accused Advocate CB Sawian submitted that the accused is a teenager and is therefore incapable of understanding the consequences of his actions. Accordingly, it was contended that keeping him incarcerated with other inmates, some of whom may be harden criminals will have an impact on his future career.

It was argued further that the POCSO Act has been enacted to prevent cases of sexual assault on children, however, the Act does not contemplate punishment of teenagers who are involved in romantic love. It was also pointed out that the accused has been in judicial custody for almost 11 months, while the POCSO Act stipulates that cases have to be disposed of in a year.

On the other hand, Additional Advocate General B Bhattarcharjee, opposing the bail application, submitted that the accused is an adult who is booked with a serious charge. It was also submitted that the provisions of the POCSO Act does not distinguish between the severity of the offence whether it is a result of romantic love or otherwise. Whether he is 19 years or 40 years would make no difference in the eyes of the law, it was contended further.

Pursuant to the perusal of the record, the Court noted that investigation was complete and that the charge sheet had been filed. Thereafter the Special Court (POCSO) had also taken cognizance of the charge sheet and that the case is now at the stage of evidence, it was noted further. 

"The contention of the learned AAG on the applicability of the relevant provision of the POCSO Act and the severity of the offence involved would be subject to the appreciation of evidence adduced in the case. However, this Court while taking into the account the nature and gravity of the alleged offence has also to consider other aspects as far as consideration for grant of bail is concerned", the Court opined further. 

Accordingly, Court allowed the bail plea on a personal bond of ₹20,000 with two sureties of like amount. The accused was directed  to not tamper with the case witnesses or abscond/leave the jurisdiction of the trial court without prior permission.

Case Title: Ephina Khonglah v. State of Meghalaya 

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