The Karnataka High Court rejected a bail application of the accused petitioner in the matter of XYZ v/s State of Karnataka on the ground that the consent of the minor girl is immaterial while considering the scope of sec 3 of the POCSO act which is punishable u/sec 4 of the same act.
Background of the matter–
A complaint was lodged with police initially u/s 363 of IPC. The complainant stated that her minor daughter went to the church and was kidnapped by the petitioner. The minor girl was found after the investigation by the investigating agency and her statement was recorded and a charge sheet was filed against the petitioner u/s 4 & 6 of the POCSO act along with other charges.
As per the chargesheet, the petitioner cajoled the victim girl and took her with him in the guise of Valentine’s Day and had forcible sexual intercourse with her.
The petitioner had approached a special judge in Chikkaballapura who rejected his bail application and thus the petitioner came before the Karnataka high court to seek bail.
The petitioner’s contentions were-
- The petitioner contended that the force element is absent in the present case and therefore the ingredients to attract offences under sections 4 and 6 of POCSO are prima facie absent.
- Petitioner placed his reliance on the statements made by the victim girl before the judicial magistrate and pointed out that he tied a “mangal sutra” to her outside a temple and they were living as a husband and wife and their physical relationship was consensual.
- The petitioner contended that the purpose of the act is to bring persons in its ambit who forcefully have a physical relationship with a child and because of the absence of such material evidence on record the bail provisions should be dealt with liberally by the court.
The court observed-
- The court observed the company between the petitioner and the minor victim girl is established and the physical relationship between the petitioner and the minor victim girl is also established.
- The court observed that a child is defined u/s 2[d] of the POCSO as any person below 18 years old and the girl in the present case is 18 years old and maybe the aggravated penetrative sexual assault may not be attracted prima facie in view of the statements made by the victim girl however while considering bail applications the courts are not required to hold a mini-trial to find out the merits and demerits of the case and the statements of the victim girls should not be taken as gospel truth as the same needs to be decided during the trial.
- The court observed that considering section 3 of the POCSO act the child cannot be a consenting party and thus the consent of the victim girl is immaterial while considering the scope of section 3 of the said act at the stage of a bail application.
Thus, in light of the above observations-
The court rejected the bail application of the petitioner.