While most rightly, remarkably, robustly and rationally displaying zero tolerance for the heinous act of rape and that too against a minor, the Delhi High Court has in an extremely laudable, learned, landmark and latest judgment titled Jagbir vs State (N.C.T. of Delhi) in Bail Appln. 111/2022 that was reserved on July 20 and then finally pronounced on July 22, 2022 minced absolutely no words to observe unequivocally that merely because an act of sexual abuse results in tying of knot between the victim and the accused or in birth of a child, it does not mitigate the act of rape. It added that the consent of a minor is immaterial and inconsequential in law. The Single Judge Bench of Hon’ble Mr Justice Anoop Kumar Mendiratta also made it specifically clear that the act of claiming consent of the minor by accused, after luring such minor and entering into physical relationship cannot be treated in a routine manner for the reason that rape is not only a crime against the victim but against the entire society which leaves little option for minor child but to toe the line of the accused. The Delhi High Court made the observations while denying bail to a man accused in an FIR registered under Section 363, 366 and 376 of IPC and Section 4 and 6 of POCSO Act.

At the outset, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench comprising of Hon’ble Mr Justice Anoop Kumar Mendiratta sets the pitch in motion by first and foremost putting forth in para 1 that, Petition under Section 439 Cr.P.C. has been preferred on behalf of the petitioner in FIR No.226/2019, under Sections 363/366/376 I.P.C. and Sections 4/6 of POCSO Act registered at Police Station: Mayur Vihar, Delhi.

To put things in perspective, the Bench then envisages in para 2 that:
In brief, as per the case of the prosecution, the aforesaid FIR was registered at Police Station Mayur Vihar on statement of ‘Mrs.R’, mother of the victim, wherein she alleged that some unknown person had kidnapped her daughter namely ‘N’, aged about 15 years. The victim was reportedly missing since 09/07/2019. A Habeas Corpus application was further filed vide Writ Petition No.3453/2019 on behalf of the complainant after the registration of aforesaid FIR No.226/2019, under Sections 363/366/376 I.P.C. and Sections 4/6 of POCSO Act registered at Police Station: Mayur Vihar, Delhi. The investigation was transferred to AHTU/Crime Branch. The petitioner/accused during course of investigation misled the investigating agency by suppressing the whereabouts of the victim. Even the polygraph test of all the 07 suspects was got conducted in view of orders of the Hon’ble High Court of Delhi in Writ Petition No.3453/2019.

As we see, the Bench then observes in para 3 that:
Finally, on the basis of mobile technical surveillance and CDR location, victim was eventually recovered on 05.10.2021 along with her 8 month old female child from the house of petitioner/accused. The UPT of the victim is also stated to have been found positive and she was about 1½ months pregnant.

Be it noted, the Bench then deems it apposite to note in para 9 that:
I have given considered thought to the contentions raised. It may be appropriate to refer to observations in Satish Kumar Jayanti Lal Dabgar vs. State of Gujarat, Crl. Appeal No.230 of 2013 decided by the Hon’ble Supreme Court on March 10, 2015 wherein it was observed as under:-

14) First thing which is to be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause sixthly of Section 375 of the IPC would get attracted making her consent for sexual intercourse as immaterial and inconsequential. It reads as follows:-

375. Rape—A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

xx xx xx

Sixthly - With or without her consent, when she is under sixteen years of age.

Explanation. — Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

15) The Legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance.

16) Once we put the things in right perspective in the manner stated above, we have to treat it a case where the appellant has committed rape of a minor girl which is regarded as heinous crime. Such an act of sexual assault has to be abhorred. If the consent of minor is treated as mitigating circumstance, it may lead to disastrous consequences. This view of ours gets strengthened when we keep in mind the letter and spirit behind Protection of Children from Sexual Offences Act.

Quite significantly, the Bench then hastens to add in para 10 that:
In view of settled position of law, sexual relationship with minor is prohibited and the law clearly treats them as offences even if the same is based upon alleged consent of a minor. It may also be noticed that a girl child faces several adverse challenges if she is married below 18 years of age. The child marriage is also prohibited under the Prohibition of Child Marriage Act, 2006. Also, Section 375 defines rape and it provides that a man is said to commit rape if he has sexual intercourse with a woman under the circumstances falling under any of the seven descriptions mentioned in the Section. Clause six of Section 375 makes it clear that if the woman is under the age of 18 years then sexual intercourse with her, with or without consent is rape. Even a sexual intercourse with wife under 18 years of age regardless of her willingness or consent is rape as held in Independent Thought vs. Union of India, (2017) 10 SCC 800 giving a meaningful reading to Exception 2 to Section 375.

Most significantly, the Bench then lays bare in para 11 what forms the cornerstone of this notable judgment wherein it is unequivocally held that:
In view of the principles of law enunciated by the Hon’ble Supreme Court, the consent, if any, given by the victim girl for the alleged physical relationship being a minor cannot be treated as a consent in the eyes of law. It may also be observed that sexual exploitation and sexual abuse of children are heinous crimes which need to be effectively addressed. Merely because such sexual abuse results in tying of knot between the victim and the accused in violation of provisions of law or results in birth of a child, it does not mitigate the act of the petitioner in any manner, since the consent of a minor is immaterial and inconsequential in law.

Most forthrightly and most unhesitatingly, the Bench then minces no words to unambiguously hold in para 12 that:
The sexual exploitation by the petitioner in the facts and circumstances of the case, clearly falls within aggravated penetrated assault as defined in Section 5 of POCSO Act punishable under Section 6 of POCSO Act, even if it is claimed that the ‘act’ was consensual. Such incidents of luring a minor and entering into physical relationship, accused thereafter claiming consent of the minor, cannot be treated in a routine manner, since rape is not only a crime against the minor victim but is a crime against the entire society which leaves little option for the minor child but to toe the line of the petitioner/accused. Merely because the petitioner has claimed that marriage had been performed with the victim in a temple, the same cannot sanctify the offence as the victim was a minor and under 15 years of age at the time of the incident. The claim of marriage is also yet to be proved on record. It is imperative to keep in perspective that the statutes concerning the rights of children are special laws and must prevail and take precedents for ensuring the benefit of children.

Most remarkably, the Bench then also made it plainly clear in para 13 that:
It may further be observed that there is no evidence suggesting that victim had consented to be taken from her parents’ lawful custody. Rather, the petitioner/accused misled the entire prosecuting agency including the parents of victim having committed the offence. Since the victim was minor at the time of occurrence, even the claim that sexual intercourse was with her consent, is immaterial as the circumstances clearly point out that the minor had been enticed and lured with an intention to have the intercourse. Even the minor girl’s infatuation with the alleged kidnapper cannot be permitted as a valid defence as it would amount to undermining the essence of legislative intent under Section 361 of IPC. Reliance in this regard may also be placed upon Anversinh vs. State of Gujarat, AIR 2021 SC 477.

As an aside, the Bench then states in para 14 that:
The contention raised by learned counsel for the petitioner that age of the victim has not been correctly assessed by the investigating agency can be duly considered at the stage of trial.

While rejecting the petitioner’s petition for bail, the Bench then holds in para 15 that:
The authorities cited by the learned counsel for the petitioner are distinguishable on facts as in most of the cases relied by counsel for the petitioner, the difference of age between the victim and the petitioner was less, and the age of victims happened to be largely just below the age of majority (i.e. 18 years). Also, in view of principles of law as laid down in Independent Thought vs. Union of India (supra) and Jayanti Lal Dabgar vs. State of Gujarat (supra), the petitioner does not deserve the discretion of bail. Considering the facts and circumstances of the case, conduct of accused/petitioner and the fact that victim was aged only about 14 years and 06 months at the time of incident, the petition is dismissed.

Finally, the Bench then concludes by clarifying and directing in para 16 that, However, nothing stated hereinabove shall tantamount to expression of opinion on the merits of the case. A copy of this order be forwarded to the Jail Superintendent and learned Trial Court for information.

In sum, the Delhi High Court has been forthright, firm, fearless and frank in coming to the ineluctable conclusion that:
Merely because such sexual abuse results in tying of knot between the victim and the accused in violation of provisions of law or results in birth of a child, it does not mitigate the act of the petitioner in any manner, since the consent of a minor is immaterial and inconsequential in law. There has to be zero tolerance for such despicable acts as we see the Delhi High Court displaying in this notable case. It is certainly worth emulating by all the Courts and in fact must definitely be emulated in all such similar cases by holding similarly without fail. No denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh