POCSO : Bombay HC Grants Bail, Observes Minor Girl 'Surrendered' To Physical Desires Of Accused Out Of Love & Affection [Read Order]

The Bombay High Court has granted bail to one Anirudha Yadav, a 25-year-old man accused of raping a minor girl, in a case under Protection of Children from Sexual Offences (POCSO) Act.

The Court observed that the conduct of the victim, a minor girl aged nearly 15 years, indicated the she had left home to go with the accused by her own will and that she had 'surrendered to the physical desires of the accused out of her love and affection for him'.

Justice SK Shinde allowed the application under Section 439 of Code of Criminal Procedure and observed-

"The conduct of the victim is indicative of the fact that she had left the home of her parents by her own will and that she had surrendered to the physical desires of the applicant out of her love and affection for him. It is not the case of the prosecution that the applicant had promised to marry her. Additionally, it is also not a case where under the misconception of the fact, she had served herself to the desire of the applicant for physical relations."

The Court also held that the dictum of SC in S Varadarajan v State of Madras AIR 1965 SC 942 was applicable.

Case Background

The victim in the case was 14 years and 11 months old on the date of the said incident and the applicant was 25. FIR was registered against the accused at Kurar Police Station under Sections 363, 376(3) of the Indian Penal Code and Sections 4,6, 8 of POCSO Act.

According to the victim's statement, on April 18, 2019, she left her parents' house secretly with her belongings at 1 am to go to the accused and they travelled from Mahableshwar to Bhusawal and thereafter to Delhi. On April 22, she left with the complainant for two days, to go to Gajipur, UP, the village of the applicant, where she was persuaded by his relative to return back home and thereafter, both returned to Mumbai.

Findings of the Court

Advocate Nazneen Khatri instructed by Advocate Adil Khatri appeared for the applicant and APP Avinash Khamkhedkar for the State.

Advocate Nazneen sought applicant's bail and submitted that has been in custody since April 2018, since the trial is not likely to commence in the near future and the applicant's presence can be secured by imposing conditions. She also submitted that applicant was not living in the vicinity of the victim at the time of the occurrence of the alleged incident.

After examining the statement of the victim, Justice Shinde ruled-

"The said description of facts do not even remotely suggest that the applicant had ever induced and/or forced the victim to leave her parents house. Thus, prima facie, the ratio laid down in the S. Varadarajan's case (supra) is applicable to the case in hand."

Referring to the stringent provisions under POCSO Act, Court went on to observe-

"So far as the offences punishable under Section 4, 6, 8 of POCSO Act (special law)is concerned, it may be stated that the provisions of this law are, though, stringent in nature, would not deter the Court to grant or refuse bail in order to secure the ends of justice.

No doubt, that the applicant, under the preview of POCSO Act, is a minor, however, the facts of the present case indicate that she had sufficient knowledge and capacity to know full import of what she was doing and had only thereafter voluntarily joined the complainant."

The Court also noted that the accused had been in custody since April 2019 and that the trial was not likely to commence soon. It said that it was granting bail taking into account the "peculiar facts of the case".

The Court has clarified that the observations are expression of opinion only for the purpose of granting bail and that the same should not influence the trial.

Notably, the age of consent is 18 years, and sex with a minor is regarded as rape in law, regardless of whether it is consensual or not.

In the case of S. Varadarajan Vs. State of Madras, the Apex Court has held thus :

"Where a minor girl alleged to be taken away by the accused person, had left her father s protection 'knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, it could not be said that the accused had taken her away from the keeping of her lawful guardian within the meaning of section 361 of the Indian Penal Code, 1860 ( IPC for short). Something more had to be done in a case of that kind, such as an inducement held out by the accused person or an active participation by him in the formation of the intention either immediately prior to the minor leaving her father protection or at some earlier stage."

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