Delhi HC grants bail in POCSO case to youngster having love affair with minor girl

New Delhi: The Delhi High Court on Wednesday granted bail in a POCSO case to a youngster accused of raping a minor girl he was having a "love affair" with, while taking note of the "misapplication" of the law in cases involving young boys who are in love with girls "just below" the majority mark and are, therefore, languishing in jails on account of cases filed at the behest of families objecting to their romantic relationship.

Justice Subramonium Prasad, dealing with the case in which the prosecutrix was about 17 years old at the relevant time and the petitioner accused was about 21 year-old, said consensual sex between girls who are just below the age of 18 years and boys who are just above 20 years is in a "legal grey area" because the consent given by a minor girl is not a valid consent in the eyes of law.

Stating that the petitioner's future cannot be ignored, the judge opined that if he continues to be in jail, the chances of him coming out as a hardened criminal are very high.

In the present instance, the girl's mother had lodged a "missing" complaint in relation to her daughter, who was subsequently found to be living with the petitioner.

The FIR was lodged for offences of kidnapping, aggravated penetrative sexual assault as well as rape under the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act.

The prosecutrix initially asserted that she had willingly gone with her boyfriend, the petitioner, and got married to him and was now pregnant, but later retracted from her stand.

"This court is of the opinion that the present case is a love affair... At this juncture, this court is not going into the question as to whether the petitioner has committed offences (under POCSO and IPC)... This court is only concerned with as to whether a youngster who is in jail for the last three years should be granted bail or not in light of the fact that the prosecutrix has changed her stand in her statements," said the court in its order.

"This court has been constantly seeing that POCSO cases are being filed at the behest of the girl’s family who object to her friendship and romantic involvement with a young boy and the law is being misapplied in such cases which results in young boys, who have genuinely fallen in love with girls who are just below 18 years of age, languishing in jails," it added.

The court further noted that even earlier, the petitioner had twice eloped from her house and that as per her statement given to the doctors, her mother knew about the relationship.

"(As per the statement,) the FIR has been lodged by her mother only because the petitioner herein had refused to change his religion, gives an indication that the present FIR was lodged at the behest of the parents of the prosecutrix who did not approve of the relationship between the petitioner and the prosecutrix. This court can also take judicial notice of the fact that after the prosecutrix was found and returned to her parents, the prosecutrix would have been pressurized by her parents to change her statement," observed the court.

"This court is of the opinion that if the petitioner continues to be in jail, the chances of the petitioner coming out as a hardened criminal are very high. The future of a youngster cannot be ignored by this court at this juncture," it said.

Considering the facts in the case, including the age of the parties, the court concluded that it was inclined to grant bail to the petitioner, subject to certain conditions and asked him to give a security of Rs 20,000 with two sureties in the like amount.