On an application for pre-arrest bail under Section 438 Cr.P.C. in a POCSO case alleging rape of a 16-year-old minor, the High Court rejected the plea, holding that a minor’s consent is immaterial under the POCSO Act.
Pre-arrest bail application rejected. Case diary returned.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010153912022
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/2193/2022
IMRAN HUSSAIN S/O ABU EUSUF VILL- MALEGARH PART-III, P.S. JOGIGHOPA DIST. BONGAIGAON, ASSAM
VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. P RAHMAN Advocate for the Respondent : PP, ASSAM
BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
06.09.2022
Heard Mr. P. Rahman, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Addl. Public Prosecutor, Assam appearing for the State respondent.
This petition under Section 438 Cr.P.C., is filed for granting the privilege of pre-arrest bail to the petitioner, namely, Imran Hussain, apprehending his arrest in connection with Jogighopa P.S. Case No. 129/2022 registered u/s 417/366/376 of the IPC read with Section 6/15 of POCSO Act.
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The Case diary, as called for, is placed before the Court.
The F.I.R. reveals the allegation of commission of rape upon the victim girl, who is aged about 16 years by the FIR named accused petitioner.
The victim in her statements recorded under Sections 161 and 164 Cr.P.C. has stated that she has love relationship with the accused petitioner. She attributed the alleged incident to her consent.
In the backdrop of facts and circumstances of the case, this Court is of opinion that as the minor’s consent is immaterial, the petitioner is not entitled to the privilege of pre-arrest bail in the instant case which is registered under the provisions of the POCSO Act.
Accordingly, the pre-arrest bail application stands rejected.
Return the case diary.
This disposes of the anticipatory bail application.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether pre-arrest bail is available to an accused facing charges under the POCSO Act for alleged sexual activity with a minor.
Whether the accused’s claim of consent with a 16-year-old girl is a valid defense in a POCSO case.
3 provisions across 3 enactments
IMRAN HUSSAIN S/O ABU EUSUF
THE STATE OF ASSAM REP. BY THE PP, ASSAM
AJIT BORTHAKUR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
