Petitioner sought bail for alleged rape and pregnancy of a minor under IPC and POCSO. Court rejected arguments of consent and age misrepresentation. Bail dismissed as petitioner sexually assaulted the victim and caused pregnancy.
Petition for regular bail dismissed; petitioner cannot be released on bail.
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 780 of 2024 Reserved on: 10.6.2024 Date of Decision: 17.06.2024.
Akash Chaudhary ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?1 No.
For the petitioner : Mr. Pranshul Sharma, Advocate. : For the Respondent Mr Prashant Sen, Deputy Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Section 376(2) of IPC and Section 6 of the Prevention of Children from Sexual Offences Act (POCSO), registered vide case FIR No. 31/2023, dated 8.8.2023 at Women Police Station, Solan, H.P.
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Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
The petitioner is in judicial custody at District Jail, Solan. Police got recorded the statement of the victim under Section 164 of Cr.P.C., in which she had stated that the petitioner should be released on bail as the mistake was committed by both parties. The police have presented the challan and the matter is listed for framing of charges. The petitioner is aged 20 years and the victim is aged more than 15 years. The parties were in love with each other and both the parties are at fault. No useful purpose would be served by detaining the petitioner in judicial custody. He would abide by all the terms and conditions, which may be imposed by the Court. Hence, the petition.
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and presented before the Court and is listed on 28.6.2024 for evidence.
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12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;
(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;
(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there
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being a threat for the complainant should also weigh with the Court in the matter of grant of bail.
(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.
(d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.
13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:
“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124] .)”
7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus:
‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
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(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.’
by her to the police that the accused had called her to his room, where he raped her eight times. It was submitted that the victim had consented which is evident from the fact that she had not made any complaint to any person. This submission will not assist the petitioner.
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2003 and 18 under the POCSO Act), Baroness Hale of Richmond held in R vs G [2008] UKHL 37 as under:
“44. Section 5 of the 2003 Act has three main features. First, it singles out penetration by the male penis as one of the most serious sorts of sexual behaviour towards a child under 13; second, it applies to such penetration of a child under 13 of either sex; and thirdly it calls this “rape". This is its novel feature but it is scarcely a new idea. The offences of unlawful sexual intercourse under sections 5 and 6 of the 1956 Act were often colloquially known as “statutory rape". This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence (although it may, of course, be relevant to the appropriate sentence). Even if a child is fully capable of understanding and freely agreeing to such sexual activity, which may often be doubted, especially with a child under 13, the law says that it makes no difference. He or she is legally disabled from consenting.
Xxx
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label “rape". Parliament has very recently decided that this is the correct label to apply to this activity. In my view, this does not engage the Article 8 rights of the appellant at all, but if it does, it is entirely justified. The concept of private life “covers the physical and moral integrity of the person, including his or her sexual life” ( X and Y v The Netherlands , para 22). This does not mean that every sexual relationship, however brief or unsymmetrical, is worthy of respect, nor is every sexual act which a person wishes to perform. It does mean that the physical and moral integrity of the complainant, vulnerable by reason of her age if nothing else, was worthy of respect. The state would have been open to criticism if it did not provide her with adequate protection. This attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in my view amount to a lack of respect for the private life of the penetrating male.
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the legitimate aims of the protection of health and morals and the rights and freedoms of others.”
age and the accused was not liable was repelled as under:
“He also commits an offence if he behaves in the same way towards a child of 13 but under 16, albeit only if he does not reasonably believe that the child is 16 or over. So in principle, sex with a child under 16 is not allowed. When the child is under 13, three years younger than that, he takes the risk that she may be younger than he thinks she is. The object is to make him take responsibility for what he chooses to do”
“Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who has practised in the family courts is only too well aware of the long-term and serious harm, both physical and psychological, which premature sexual activity can do. And the harm which may be done by premature sexual penetration is not necessarily lessened by the age of the person penetrating. That will depend upon all the circumstances of the case, of which his age is only one.”
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behind the plea of consent. In Pratap (supra) and Prem Dutt (supra), the long custody of the petitioner weighed with the Court while granting the bail, which is not the case here. In Deepanshu (supra), there was no indication of recent sexual intercourse and the hymen of the victim was found to be normal, which is missing in the present case, as the victim was found to be pregnant. In Sanjeev Kumar (supra), the parties wanted to marry each other and the victim had also filed a petition seeking protection from her parents which is missing in the present case. In Sanjay Kumar (supra), the Delhi High Court held that POCSO intended to protect children below the age of 18 years from sexual exploitation and was never meant to criminalize consensual romantic relations between young adults. It is difficult to gather such an intention from the reading of the POCSO Act. Hence, this judgment cannot be followed.
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confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.
( Rakesh Kainthla) Judge
17th June, 2024 (Chander)
3 issues framed by the court
Whether bail should be granted to an accused charged under Section 376(2) IPC and Section 6 POCSO for raping a minor resulting in pregnancy.
Whether the defence of consent is valid in cases of sexual intercourse with children under the POCSO Act.
Whether the fact that the victim misrepresented her age exonerates the accused under POCSO.
Colour shows how this judgement treated each authority
Pratap Vs. State, Cr.MP(M) No. 1437 of 2022, decided on 10.8.2022Distinguished¶71
Prem Dutt Vs. State, 2023 (1) HLR HC 151Distinguished¶71
Deepanshu Gagat Vs. State of H.P. 2020 (4) Criminal Court Cases 533Distinguished¶71
Sanjeev Kumar Vs. State of H.P. 203 (2) HLR HC 1267Distinguished¶71
Sanjay Kumar Vs. State, Bail Application No. 2898 of 2022, decided on 28.7.2023Distinguished¶71
Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059Explained¶24
Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528Explained¶32
State of Haryana vs Dharamraj 2023 SCC Online 1085Explained¶38
R v Corran [2005] EWCA Crim 192, para 6Referred¶52
R vs G [2008] UKHL 37Referred¶54
R v Hess; R v Nguyen [1990] 2 SCR 906Referred¶56
X and Y v The Netherlands, para 22Referred¶59
2 provisions across 2 enactments
Akash Chaudhary
State of Himachal Pradesh
Rakesh Kainthla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
