Noting that once prima facie it appears that the prosecutrix was a minor, the grounds that there was a "love affair" between her and the accused and the accused's alleged refusal to marry would be extraneous for bail, the Supreme Court on Monday set aside the bail granted to an accused under section 376, IPC and section 6, POCSO.
The bench of Justices D. Y. Chandrachud and Surya Kant was hearing an appeal arising from an August, 2021 decision of a Single Judge of the High Court of Jharkhand by which the application for bail of the second respondent/accused had been allowed, subject to conditions.
The bench noted that on 27 January 2021, an FIR was registered in District Ranchi inter-alia for offences punishable under section 376 of the IPC and section 6 of the POCSO Act. "The complaint of the petitioner contains an allegation that when she was a minor, the second respondent had taken her to a residential hotel and had entered into sexual relations with her on the assurance of marrying her. The complainant further recites that the second respondent was refusing to marry her, that he had sent obscene videos to her father. The application for anticipatory bail filed by the second respondent was rejected by the Special Judge (POCSO), Ranchi in February, 2021. Thereafter, the second respondent had surrendered and sought bail. The chargesheet was submitted before the special judge on 24 May 2021", recorded the bench.
The bench of Justices Chandrachud and Surya Kant further recorded, "The application for bail has been allowed by the Single Judge of the High Court of Jharkhand. The reasons which have weighed with the Single Judge are contained in the following paragraph from the impugned order of August, 2021: 'It appears from the statement under Section 164 Cr.P.C. as well as the averments made in the FIR that there was a love affair between the petitioner and the informant and the case appears to have been instituted only on the point of refusal of the petitioner to solemnise marriage with the informant'"
The bench observed that Senior Advocate Anand Grover, for the appellant, submits that 1. the date of birth of the appellant as recorded in the Aadhaar card is 1 January 2005; 2. at the time the alleged offences are stated to have taken place, she was just about 13 years of age; 3. having regard to the provisions of section 376 of the IPC and provisions of the POCSO Act, the reasons which have weighed with the High Court are ex facie extraneous and the application for bail could not have been allowed.
Mr. Grover had orally advanced in Court on Monday, "The accused was 20 years old, so it is not like they were both minors when it happened. A 13-year old could not have given consent in law. It is statutory rape. Unfortunately, the High Court says there was a love affair between the two and that the case was filed only when he refused to marry and grants bail"
The bench further recorded in its order that Advocate Rajesh Ranjan, for the second respondent, has placed reliance on the statement of the prosecutrix recorded under section 164 of the Cr. P. C. The bench recorded that he submitted that though the chargesheet has been submitted, there has been no recovery of the alleged obscene video, nor is there any medical evidence to indicate that the second respondent entered into sexual relations with the appellant.
"Medical evidence and all is a matter of trial", Justice Surya Kant had remarked orally.
The bench then proceeded to hold that, "In our view, the High Court was manifestly in error in allowing the application for bail, particularly on the ground that from the statement under section 164 as well as the averments in the FIR, it appears that there was a 'love affair' between the appellant and the second respondent and the case was instituted only on the point of the refusal of the second respondent to solemnise marriage with the appellant."
The bench continued to observe in its order, "Once prima facie it appears from the material before the court that the appellant was barely 13 years of age on the date when the alleged offence took place, the ground that there was a 'love affair' between the appellant and the second respondent as well as the alleged refusal to marry may be circumstances against the grant of bail."
"Having regard to the age of the prosecutrix and the nature and the gravity of the crime, no case for the grant of bail was established. In its order granting bail, the circumstances which were borne in mind by the High Court are extraneous in nature, having regard to the provisions of section 376 of the IPC and section 6 of the POCSO Act. We accordingly allow the appeal and set aside the impugned order of the High Court. Consequent on the setting aside of the impugned order of the High Court, the second respondent shall surrender forthwith", directed the bench.
Case Title: X (Minor) V. The State Of Jharkhand And Anr.
Citation : 2022 LiveLaw (SC) 194
Headnotes
Protection of Children from Sexual Offences(POCSO) Act, 2012, Section 6- Once, prima facie, it appears from the material before the Court that the appellant was barely thirteen years of age on the date when the alleged offence took place, both the grounds, namely that "there was a love affair" between the appellant and the second respondent as well as the alleged refusal to marry, are circumstances which will have no bearing on the grant of bail. Having regard to the age of the prosecutrix and the nature and gravity of the crime, no case for the grant of bail was established. The order of the High Court granting bail has to be interfered with since the circumstances which prevailed with the High Court are extraneous in view of the age of the prosecutrix, having regard to the provisions of Section 376 of IPC and Section 6 of POCSO.
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