Karnataka High Court Denies Bail To Man In POCSO Case, Says Minor Girl’s Statement On Consent Can’t Be Taken As Gospel Truth While Deciding Bail Plea

The Karnataka High Court has refused bail to an accused in a case under the Protection of Children from Sexual Offence (POCSO) Act, who claimed that the victim minor girl was a consenting party and that there was absence of element of force.

Justice V Srishananda said the "consent, if any, of the victim girl for the penetrative sexual assault said to have taken place between the petitioner and the victim girl is immaterial while considering the scope of Section 3 of POCSO Act which is punishable under Section 4 of the POCSO Act.”

The accused Bujji @ Babu G has been charged under Sections 4 and 6 of POCSO Act and under Section 9 and 10 of the Prohibition of Child Marriage Act, 2006 and Sections 363, 372(2) (n) and Section 344 of IPC.

According to the prosecution, the accused (23) "cajoled" the victim girl (16) and took her with him on 14.02.2022 in the guise of Valentine’s Day. Thereafter, near the entrance of Nandi Hills, the petitioner took her into a lonely place and had forcible sexual intercourse with her. Again on 02.04.2022, he allegedly took the victim girl to one of his relative’s house representing the victim girl as a major and obtained premises on rent and started residing there.

On 03.04.2022, he allegedly took the victim girl to Anjaneya Swamy Temple and married her. On 11.05.2022, the petitioner had sexual intercourse with the victim girl. The Police on the complaint of the victim's mother investigated the case and filed a charge sheet against the accused for the offences.

The petitioner had sought bail before the special court which came to be rejected. Thus he approached the high court. His main contention was that the element of force is absent in the case on hand and therefore, ingredients to attract the offences punishable under Section 4 and 6 of POCSO Act are prima facie absent.

In support of his claim he heavily relied on the statement made by the victim girl under Section 164 of Cr.P.C, before the Magistrate, wherein she has said that the petitioner tied ‘Mangala Sutra’ outside the Anjaneya Swamy Temple in Doddaballapur and thereafter they lived like husband and wife and they used to have physical relationship every alternate day.

“The Courts ought to have a liberal view and the petitioner cannot be penalised for the consensual act between a grown up victim girl and the accused,” the counsel representing the accused said. 

The prosecution opposed the plea saying that since the victim girl is a minor, the alleged consent is not a consent in the eye of law.

The bench referred to section 3 to 6 of the POCSO Act and said: “In the case on hand, admittedly the victim girl is under the age of 18 years. May be in the case on hand, the aggravated penetrative sexual assault may not get attracted prima facie in view of the statement made by the victim girl under Section 164 of Cr.P.C, especially, when the victim girl stated that she had the company of the accused/petitioner happily and she is aged 16 years.”

Observing that while considering the bail application, it is settled principle of law that the court is not required to hold a mini trial to find out the merits or demerits of the case, the bench said:

“What is the value to be attached is a statement recorded under Section 164 of Cr.P.C, of the victim girl while deciding the bail application should also have the same treatment that such a statement should not be taken as gospel truth, as the same needs to be tested during the trial.”

The court said since the victim girl has specifically stated that she had sexual relationship with the petitioner every alternate day, it "would only indicate that there was no resistance on the part of the victim girl in the alleged act and she participated in the act voluntarily.”

Considering that the Act has been enacted to provide protection of children from the offences of sexual assault, sexual harassment and pornography, the bench said:

“On bare reading of the Section 3 of the POCSO Act, the provision never contemplates anything about the consent inasmuch as the intention of the legislature is abundantly clear that a child cannot be a ‘Consenting Party’.”

The court said it is "crystal clear that a person who is under the age of 18 years, at any cost cannot be a consenting party to a physical relationship in view of the definition of the ‘child’ under Section 2(d) of POCSO Act."

“The theory propounded on behalf of the petitioner that the victim girl is a consenting party to the alleged penetrative sexual assault and there is absence of element of force and therefore, no ingredients whatsoever to attract the offence under Section 3 and 5 punishable under Section 4 and 6 of the POCSO Act cannot be countenanced in law, more so, at the stage of considering the bail application,” said the court. 

“In the cases where there is an allegation that there was a love affair, such cases must stand on a different footing. However, even in such cases, having regard to the age prescribed to call a person as a child under 18 years, a love affair may be permissible, but not definitely physical relationship having regard to the object of the act. Otherwise, the very object of the enactment would render useless and registering a case and investigation and trial would all become empty formality,” it added.

The bench also held that the argument put forward on behalf of the petitioner that if enlarged on bail, would make sincere efforts to marry the victim girl cannot be countenanced in law.

“It is not uncommon that the Courts across the Country have often either enlarged an accused on bail owing to the accused contracting marriage with the rape victim or cases where the FIR has been quashed on account of subsequent marriage. Those judgments and orders eclipse the settled principles of law enunciated by the Hon’ble Apex Court while considering the seriousness or gravity of the offences alleged against an accused in a given case," said the bench.

Referring to Apex court judgment in the case of Daxaben v. State of Gujarat, the bench said: “Despite such repeated rulings from the Hon’ble Apex Court in the sensitive matters, Trial Court and sometimes the High Court is often required to deal with plea of settlement/compromise; especially in the matter involving sexual assault offences/where that the accused is ready to marry the victim and therefore, the accused be granted bail or the complaint be quashed.”

“If such pleas are accepted as a rule, it would result in the Court allowing non-compoundable offence being compounded by the process of the Court which is not the intention of the legislature in enacting the relevant statutes,” said the court.

The court said taking note of the object that is sought to be achieved by enacting the POCSO Act, it is of the considered opinion that the grounds urged in the petition are hardly sufficient to accept the request made by the petitioner to admit him on bail.

"Keeping all these aspects in view, even though victim girl has stated that she had the company of accused and physical relationship and both the couple had the relationship on their volition, taking note of the object that is sought to be achieved by enacting the POCSO Act, this Court is of the considered opinion that the grounds urged in the petition are hardly sufficient to accept the request made by the petitioner to admit him on bail by resorting to the special powers vested in this Court under Section 439 Cr.P.C," said the court. 

The court clarified that it is open for the petitioner to approach the Court with a successive bail request, if there is any positive changed circumstance in the case after examination of the material witnesses.

Case Title: Bujji @ Babu G And State Of Karnataka

Case No: CRIMINAL PETITION NO. 12080 OF 2022

Citation: 2023 LiveLaw (Kar) 137

Date of Order: 14-03-2023

Appearance: Advocate Tigadi Veeranna Gadigeppa for petitioner

HCGP S Vishwamurthy for respondent.