Without mincing any words and without beating about the bush, the Delhi High Court has as recently as on October 5, 2021 in a learned, latest, laudable and landmark judgment titled Praduman vs The State (Govt of NCT of Delhi) & Anr in Bail Appln. 2380/2021 has expressed its serious concern of the unfortunate practice of police filing POCSO cases at the behest of girl's family who object to her involvement and friendship with young boys. While granting bail to a 21 year old man accused in the case, Justice Subramonium Prasad of Delhi High Court had no reservations whatsoever in holding unambiguously that:
Consensual sex has been in legal grey area because the consent given by minor cannot be said to be a valid consent in the eyes of law. The rigor of the law is therefore being misapplied and subsequently misused. This is quite manifestly known and there can certainly be no ever denying or disputing it!
To start with, the ball is set rolling in this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of the Delhi High Court comprising of Justice Subramonium Prasad by first and foremost putting forth in para 1 that:
The present bail application is filed under Section 439 of Code of Criminal Procedure in FIR No. 802 of 2020 filed at PS Nihal Vihar for offences under 376, 313, 328, 506 IPC read with Section 6 POCSO Act filed on 04.08.2020.
While dwelling on facts as stated in FIR, the Bench then observes in para 2 that:
The facts as per the FIR are that the complainant filed a complaint stating that she is 16 years of age, a student of 12th Standard and lives along with her parents and two elder brothers. She stated that in January 2020 the Petitioner stalked her while she would go to school and he had expressed his intention to make friends with her but she resisted.
While elaborating further, the Bench then discloses in para 3 that:
The FIR states that during the national lockdown stoked by COVID-19, on 20.06.2020 she went to borrow a school book from her friend and when was returning she was stopped by the Petitioner who held her hand and asked her why she was showing an attitude towards him. It is stated that the Petitioner forcefully took her to the ground floor of his house and gave a cold drink and chips to her after which she became unconscious and fainted and when she woke up it is stated found herself on the bed of the Petitioner with her private parts paining and the bed wet. It is stated that she broke down and told the Petitioner that he had wronged her for nothing to which the Petitioner retorted that you have a big attitude and now I have broken it. It is stated further that the complainant due to fear of reprisal from her family did not disclose this happening to them.
Furthermore, the Bench then also discloses in para 4 that:
The FIR states that from 30.07.2020 the complainant was having continuous spells of vomiting and she was taken the doctor where despite medication the vomiting didn't stop and on her revisiting the doctor on 03.08.2020 and ultrasound of the complainant was done and it was discovered that she was Pregnant by 7-8 weeks. After registration of the FIR, the accused was arrested. Statement of the prosecutrix under Section 164 CrPC has been recorded before the learned Metropolitan Magistrate, Tis Hazari Courts.
To put things in perspective, the Bench then envisages in para 5 that:
In the statement under Section 164 CrPC statement the prosecutrix stated that she was being followed by the Petitioner, he would try and talk to her but she would not show interest. The Section 164 CrPC statement further stated on returning from her friend's house she was stopped by the Petitioner and was given laced cold drink after taking her to his house which rendered her unconscious after which the Petitioner raped her. She stated that she was dejected and confronted him thereafter asking him why he did this. She further stated that due to shame and fear she did not tell her family what had transpired with her. She stated that she had gotten pregnant and was admitted to Bhagwan Mahavir Hospital and Medical Termination of Pregnancy was done on 7.8.2020 after informing the Police, filing an FIR and completing the legal formalities and obtaining consent of her parents/brothers.
As it turned out, the Bench then enunciates in para 6 that:
During the course of investigation, it was stated by the complainant to the sub-Inspector that she does not want to be involved in the case or continue the case against her friend a.k.a Petitioner herein. Section 161 CrPC statements of the complainant's family members were recorded. The Chargesheet shows that the complainant's date of birth as per her school records in 25.08.2003 i.e. 17 years at the time. It also states that from the investigation done there is ample evidence, testimony, MLC of the victim and proof of her minority at the time the incident occurred.
As we see, the Bench then observes in para 7 that:
Investigation is complete and the charge sheet stands filed. The Petitioner approached this Court for granting regular bail. After hearing some arguments, this Court vide order dated 23.11.2020 allowed the Petitioner to withdraw his bail application with liberty to apply for bail at an appropriate stage.
Truth be told, the Bench then brings out in para 8 that:
The Petitioner approached the Special Court, (FSTC) (POCSO) applying for Bail. The Court denied to enlarge the Petitioner on bail vide order dated 01.07.2021. The Court recorded the Complainant's stance of not wishing to go forward with the present case. The Trial Court dismissed the application in view of the seriousness of the crime. The petitioner has approached this Court by filing this bail application.
Needless to say, the Bench then after perusing the records states in para 16 that:
Material on record reveals that on 03.08.2020, the prosecutrix was examined in Bhagwan Mahavir Hospital in which the history which was given by the prosecutrix was that she had her periods overdue and the Gynaecology Department has referred the her after finding that the prosecutrix was pregnant. In the MLC, it is stated by the prosecutrix that she went to her friend's house for a party. The date of the party has not been given. It is stated that in the party, they drank bear and the other family members and friends were also present. It is stated that since they had lot of drinks, she fell unconscious and when she woke up, she found herself in bed and the bed sheet was wet and the prosecutrix was paining.
Of course, the Bench then points out in para 17 that:
The FIR was registered the next date i.e. 04.08.2020 wherein the prosecutrix had named that the petitioner herein used to stalk her and wanted to do friendship with her which she denied. It is alleged in the FIR that between 11.06.2020 to 20.06.2020, she went to her friend's house to borrow her books while on her way back, the petitioner met her, stopped her and caught hold of her and forcibly took her to the ground floor of his house, made her consume drinks and she became unconscious. When she regained consciousness, she found that she was lying down and the bed sheet was wet and her body was paining. When she confronted the petitioner, he told her that since she was not adhering to his request of friendship and he committed rape.
Going forward, the Bench then reveals in para 18 that:
On the very same date i.e. 04.08.2020, in the statement under Section 164 CrPC, she has categorically stated that she did not know the person who committed rape on her. She stated that she used to visit her friend, the person i.e. the petitioner herein that his name, she does not know, caught hold of her and took her to his house. She states that she did not sound because there was nobody in the street. It is stated by her in the statement under Section 164 CrPC that the petitioner forced her to consume a cold drink and then she did not remember what happened. When she regained consciousness at 4/4:30 in the evening, she found that the bed sheet was wet and lower portion of her body was paining. She states that the boy who committed rape on her came on that point of time and he told her that he could not control himself and beg for forgiveness.
To be sure, the Bench then points out in para 19 that:
This Court has also perused the photographs which has been produced wherein the petitioner and the prosecutrix found are to be shown in very close proximity and it is apparent that they were in a relationship with each other.
Be it noted, the Bench then observes in para 20 that:
A perusal of the above-mentioned facts show that the prosecutrix has given three different statements. In the MLC which was conducted prior to the FIR she does not name the petitioner. The MLC was conducted because prosecutrix who was below the age of 18 years was found to be pregnant. The FIR was registered on the next day when she named the petitioner. The statement of the prosecutrix under Section 164 CrPC was recorded wherein she does not name the petitioner.
It cannot be glossed over that the Bench then hastens to add in para 21 that, During the proceedings of bail, the prosecutrix has stated that she has no objection to the grant of bail. The prosecutrix and the petitioner are more or less of the same age and as stated, the photographs which have been filed clearly show that the prosecutrix and the petitioner were in a relationship. When the prosecutrix who was complaining of vomiting and who was taken to the hospital and in the hospital it was revealed that she was pregnant and the MLC and it gives to the corroboration to the fact that the prosecutrix was not subjected to any forcible rape. This Court cannot overlook the fact that the petitioner is now only 21 having a complete life ahead of him. This Court also cannot overrule their friendship as both of them were students of the same school.
Most damningly and also most significantly, the Bench then is absolutely right in holding in para 22 that:
Consensual sex has been in legal grey area because the consent given by minor cannot be said to be a valid consent in the eyes of law. The short question which arises is as to whether the petitioner should be granted bail or not. Whereas, what has become a trite and unfortunate practice is that the Police are filing POCSO cases at the behest of the family of a girl who object to her friendship and romantic involvement with a young boy. The rigor of the law is therefore being misapplied and subsequently misused.
The age of the petitioner and the prosecutrix, the photograph which categorically pointed towards a relationship between the two and the discrepancies in the statements given at the time of the recordings of the MLC, the FIR and the statement under Section 164 CrPC are all mitigating factors which tilt the balance towards the grant of bail to the accused.
Quite remarkably, the Bench then lays bare in para 26 that:
It appears, in the facts and circumstances of this case, as if the present FIR has been lodged at the insistence of the family of the victim/complainant who were perhaps embarrassed on finding that the complainant had become pregnant and if this was known in the neighborhood there would be a social backlash that the family would encounter and, in order to avoid the social embarrassment and to get the pregnancy medically terminated this FIR has been filed giving it the color of sexual exploitation and bringing it in the ambit of the POCSO Act which envisages the abolition of child abuse.
No less significant is what is then quite glaringly stated in para 27 that:
It can be seen that the petitioner and the complainant are friends and love between both of them cannot be ruled out as an option. The FIR has been lodged after the discovery that the prosecutrix is pregnant and statement under Section 164 Cr.P.C recorded thereafter. As stated there are discrepancies between the statement of the doctor, the FIR and the statement under Section 164 CrPC. Looking at the respective ages of the petitioner and the complainant both were romantically attracted towards each other and their relationship was consensual. The photographs annexed in the petition show that the petitioner and the complainant were romantically involved with each other, which is a common phenomena in adolescence/young adults. It is also clear to the Court that the pregnancy of the complainant was terminated after lodging of the FIR.
The complainant has gone on record in her 164 Cr.P.C statement as well as before the learned Trial Court that she would not like to pursue this case and wants to move on with her life and study ahead and would also not want her friend to suffer in jail. The petitioner being a young man of 21 years of age and having a full life ahead cannot be deprived of his liberties. The petitioner has been in jail for over 12 months and is being subjected to be in the company of hardened criminals. This would do more harm than good to a common man of 21 years of age. In the facts and circumstances of the case, this Court thinks that the petitioner's case should be considered adequately.
What's more, the Bench then for sake of clarity points out in para 28 that, This Court on 12.08.2021 directed the petitioner to find out as to where the petitioner would reside if he is granted bail and that such place should be far away from where the prosecutrix resides so that the evidence is not tampered with.
Quite remarkably, the Bench then stipulates in para 29 that:
Mr. Pradeep Rana, learned counsel for the petitioner states that the petitioner would stay at H. No. 158, Unouti, Hardoi, Uttar Pradesh - 241404. The said house belongs to the father of the petitioner who stays with his family. The address stands verified by the prosecution.
In the facts and circumstances of the case, this Court is inclined to grant bail to the petitioner on the following conditions:
- The Petitioner shall furnish a personal bond in the sum of ₹50,000/- with two sureties of the like amount, one of them should be a relative of the petitioner, to the satisfaction of the Trial Court/Duty Magistrate.
- The Petitioner shall not leave the District of Hardoi without other than appearing in Court. He is directed to attend all the proceedings.
- The Petitioner shall report to the local Police Station every Tuesday and Friday at 10:30 AM and should be released after completing the formalities within half an hour.
- The Petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times.
- The petitioner has given his address in the memo of parties as H. No. 158, Unouti, Hardoi, Uttar Pradesh -241404. The Petitioner is directed to continue to reside at the same address. In case there is any change in the address, the Petitioner is directed to intimate the same to the IO.
- The Petitioner shall not, directly or indirectly, tamper with evidence or try to influence the witnesses.
- Violation of any of these conditions will result in the cancellation of the bail given to the Petitioner.
For sake of clarity, the Bench then holds in para 26 that:
It is made clear that the observations made in this Order are only for the purpose of grant of bail and cannot be taken into consideration during the trial.
Finally, the Bench then holds in para 27 that:
Accordingly, the bail application is disposed of along with the pending application(s), if any.
In conclusion, it may well be said that the Delhi High Court has in this notable case very rightly expressed its serious and grave concerns over police filing POCSO cases at the drop of a hat at the behest of minor girl's family who oppose her romantic relationship as a trite and unfortunate practice. The misapplication and misuse of the law as pointed out by the Delhi High Court ought to be checked on a war footing. We saw how the Delhi High Court in this case while granting bail to the young man aged 21 years who was accused very rightly was of the view that the accused being a young man and having a full life ahead of him cannot be deprived of his liberties. All the courts must also abide by what has been held so rightly by the Delhi High Court in this leading case!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
