1. Unfortunate practice” of police filing POCSO cases at the behest of girl’s family
Without mincing any words, 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!
2. Facts surrounding the Case
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. 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. 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.
The Chargesheet shows that the Complainant was 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.
3. Conflicting Statements recorded
Be it noted, the Bench then observes in para 20 the conflicting statements- “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. 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.
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.
4. Issue was of to grant or not to grant bail
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.
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.
5. Final words
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.
Bill Oxford photo on Unsplash
About the author
