Madhya Pradesh High Court
Mohit Rajput vs The State Of Madhya Pradesh on 28 February, 2022
Author: Vishal Mishra
Bench: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 28th OF FEBRUARY, 2022
MISC. CRIMINAL CASE No. 8916 of 2022
Between:-
MOHIT RAJPUT S/O SHYAM SINGH RAJPUT , AGED
ABOUT 21 YEARS, OCCUPATION: NIL R/O VILLAGE
THAWRI P.S. KEWLARI DISTRICT SEONI (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI V.R.DANEIL, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION AJAK DISTRICT SEONI
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VIJAY SONI, GOVERNMENT ADVOCATE)
This application coming on for admission this day, the court passed the
following:
ORDER
This is the first bail application under Section 439 of Cr.P.C filed by the applicant for grant of bail.
T he applicant has been arrested on 23.12.2021 by Police Station AJAK, District-Seoni (M.P.) in connection with Crime No.14/2021 registered in relation to the offence punishable under Sections 376 and 376 (2) (n) of IPC, Sections 3,4,5L,5(j)(ii) and 6 of POCSO Act, 2012 and Sections 3 (1)(w)(i), 3 (1)(w)(ii), 3(2)(v) of SC/ST (POA) Act, 1989.
It is submitted that the applicant has been falsely implicated in the case and has not committed any offence in any manner. Investigation is over and charge sheet has been filed in the matter. The applicant is in custody since 23.12.2021 There is no further requirement of custodial interrogation of the applicant. It is submitted that the age of the victim as per the prosecution is 16 years and 06 months. Present applicant and the victim were in amicable terms and were having a Signature Not Verified SAN love affair. The victim was known to the present applicant for last more than three Digitally signed by SHALINI LANDGE Date: 2022.03.11 18:13:18 IST years and with their consent they made physical relations but on 04.12.2021, her 2 younger sister has seen both of them in a compromising position therefore, the matter was immediately reported to her parents and thereafter, her mother made a complaint in the police station against the present applicant. It is argued that in her statement recorded under Section 164 of the Cr.P.C. she has not supported the case of the prosecution. It is pointed out that she was having good terms with the present applicant; therefore, with her own will and consent made physical relations with the present applicant. The factum that she is a minor and is not in a position to give consent was considered by the High Court of Madras in the case of Vijay Laxmi and another Vs. The Inspector of Police and Another and it was held that a girl below 18 years of age involved in a relationship with a teenage boy, below 18 years has considered the aspect that the girl who was 16 years of age is able to understand the pros and corns of the act and when she was in loving terms with the accused/applicant and has made relations with her own will and it cannot be said to be a case falling in the category of POCSO Act or a forceful sexual assault. Therefore, the benefit was extended to the applicant in proceedings of the criminal case were quashed. It was further observed that the court was necessarily examined if a crime in question is purely individual in nature or a crime against the society with overriding public interest. Hon'ble Supreme Court has held that the offences against the society with overriding public interest even if it get settled between the parties cannot be quashed by this court but as far as, the cases of personal interest are concerned the interference can always be made even in the cases of non-compoundable offences. He has further placed reliance upon the judgment passed by the High Court of Maharashtra, in the case of Sunil Mahadev Patil Vs. The State of Maharashtra reported in 2016 Cri LJ (NOC 36) 14 wherein, in similar circumstances, the bail was extended to the applicant. The age of the prosecutrix in that case was 15 years and the accused was 20 years of age. He has further brought to the notice of this court certain salient features to the Protection of Children from Sexual Offences Act, 2012 (in short "POCSO Act"), and has argued that discussion has been done with respect to the age of the victim Signature Not Verified whether the age limit for consensual sex is 16 years or 18 years. It was pointed out SAN Digitally signed by SHALINI LANDGE that the protection of child rights have set the age limit of consensual sex to be 16 Date: 2022.03.11 18:13:18 IST years but the standing committee constituted by the Parliament has raised the age 3 to 18 years. It is argued that in the present scenario and in the today's world of internet where the society is moving ahead with a great pace, the children are getting mature at an early date. The sense of realization and the maturity level is attained at an early age. They are in a position to remove the difference between wrong and right. As per the protection of child rights, the consensual age for sex was 16 years and that appears to be the correct age but the committee has enhanced the age to 18 years. In large number of cases it is seen that the teenagers, the girl below 18 years of age and the boy just over 18 years of age are in love affairs and are going beyond the limits and are developing physical relations with their own free will and consent. Whether the aforesaid aspect can be considered to be a forceful sexual attempt by the boy. The girl is not in a position to understand the outcome of making a physical relations with the consent; therefore, no offence of rape is said to have been committed. He has placed reliance upon the certain orders passed by this court; wherein, the age of the girl was more than 16 years of age and the benefit of bail was extended to the applicant considering the fact that she was in good terms with the accused and has made physical relations with the applicant without there being any resistance by her. He is ready to abide by all the terms and conditions that may be imposed by this Court while considering this bail application. On these grounds, he prays for grant of bail.
P er contra, counsel appearing for the State has vehemently opposed the application stating that admittedly the age of the girl was 16 years and 06 months. Admittedly, she was a minor on the date of commission of offence. In her statement recorded under Section 164 of the Cr.P.C. she has admitted the fact that she has developed physical relations with the accused/applicant out of her own will and she was knowing the applicant for last more than three years but the fact remains that whether the relations made with the consent below 18 years of age can be considered under the definition of consent given by a minor. As per the school records, the certificate issued by the Head Master of the School, the date of birth of the victim is 06.12.2004. The date of birth recorded in the scholar register is 06.12.2004. The samples were collected and sent for FSL and the report has not Signature Not Verified SAN Digitally signed by SHALINI LANDGE Date: 2022.03.11 18:13:18 IST been received till date. It is argued that in the POCSO Act the age of the child has 4 been defined under Section 2 (d) of POCSO Act, 2012; wherein, the child means any person below 18 years of age. Thus, the girl who is below 18 years of age cannot be said to be in a position to give consent; therefore, the act committed by the applicant will definitely fall under the category of rape and POCSO Act is clearly attracted in the facts and circumstances of the case. Even the statement of the victim has not been recorded before the trial court; therefore, he has prayed for dismissal of the application.
Heard the learned counsel for the parties and perused the record. On the perusal of the record it is undisputed that the age of victim is below 18 years of age and her date of birth as per the records is 06.12.2004. The incident took place on 04.12.2021 and the matter was immediately reported to the police authorities. Admittedly, on the date of incident she was below 18 years of age. The pivotal question which is required to be considered by this court is whether the victim who was below 18 years of age can be considered as a minor and whether the physical relations made with her will amounting to physical relations made with her consent and whether her willingness for the same will amount to giving of her consent. As per the object of POCSO Act is required to be seen, the POCSO Act, 2012 is a comprehensive law to provide for protection of children from offences of sexual assault, sexual harassment and pornography. The basic object of the act is to protect the child from all aspects so that he/she feels comfortable, protected and free from any fear or horrified experiences and that experience the child friendly atmosphere. The POCSO Act provides for a definition of a "child" under Section 2 (d) of the POCSO Act which reads as under:-
"2 (d) "child" means any person below the age of eighteen years;"
From the aforesaid it is apparently clear that a person is considered to be a child who is below 18 years of age for all purposes of POCSO Act. The Hon'ble Supreme Court in the case of Ms. Eera Through Dr. Manjula ... vs State (Govt. Of Nct Of Delhi) reported in 2017 (15) SCC 133 has considered and held that ("about the object and purpose of the act when two constructions are Signature Not Verified reasonable possible, preference should be given to one which helps carry out SAN Digitally signed by SHALINI LANDGE the beneficial purpose of the Act without unduly expanding scope of provision.
Date: 2022.03.11 18:13:18 ISTAlso, that the courts while construing provisions must ascertain intention of 5 legislature since, it is in accepted principle that legislature expresses itself with the use of correct words and in absence of any ambiguity or resultant consequence does not lead to any absurdity. No other interpretation tool may be looked for in the name of creativity".) Further in the aforesaid case, there is a question as to whether the age of a child would means to be physical age or it would include the mental age of a person. The Hon'ble Supreme Court has held that the definition of a child in under Section 2 (1) (d) of the POCSO Act means any person below the age of 18 years. The Hon'ble Supreme Court has held that the term "child" cannot embrace in its connotative expanse, the mental age of a person since stretching the word age and years would be encroaching upon the legislative functions. The additional word mental cannot come within purposive construction tantamounts to causing violence to legislation by incorporating words to definition and encroaching upon legislative function which is impermissible. Respect for dignity of a person, has its own pedestal but that conception cannot be subsumed and integrated into a definition where the provision is clear and unambiguous and does not admit of any other interpretation. It was also held that in some cases that provisions under the IPC are on different bases and the foundation legislature despite having intent in its Statement of Objects and Reasons and the long Preamble to the POCSO Act, though it is wise to define the term "age" which not only mention a child but adds the words Âœ"below the age of 18 years"Â.
The POCSO Act has identified minors and protects them by prescribing statutory age which has nexus with the legal eligibility to give consent for any sexual act. Thus, the legislature has felt appropriate that the definition of the term "Âœage" by chronological age or biological age to be the safest yardstick than referring to a person having mental retardation which may be due to the fact that the standards of mental retardation are different which require determination by an expert body and degrees are also different. The legislature has not included mental age which was within the legislature domain if they intended so. In such a situation, to include the perception of Signature Not Verified SAN Digitally signed by SHALINI LANDGE Date: 2022.03.11 18:13:18 IST mental competence of a victim or mental retardation as a factor would 6 tantamount to cause violence to the legislation which is not permissible.
In the aforesaid case, the Hon'ble Justice Rohinton Fali Nariman, J. in his concurring opinion that while interpreting statute the model trend is to examine the text as well as context and object or purpose as well as literal meaning, by reading the act as a whole in the light of statement of objects and reasons it is clear that the intention of legislature was to focus on children as commonly understood i.e. persons who are physically under 18 years of age. The word mental as far as age cannot be read into Section 2 (1) d of the POCSO Act and as that would do injustice to the intent and language of the legislature.
From the aforesaid it is apparently clear that the basic object of the POCSO Act is to be seen while determining the age of the victim. Any child below the age of 18 years is a child for POCSO Act and no other interpretation of definition of a child can be given, giving any other definition to the age of the child will be amounting to doing injustice as the intent of legislature is very clear under the POCSO Act, 2012.
The procedure for age determination was also been taken into consideration by the Hon'ble Supreme Court in the case of Jarnail Singh Vs. State of Haryana reported in 2013 (7) SCC 263 wherein certain guidelines have been framed for determination of the age of a minor. Rule 12 of Juvenile justice (Care and Protection of Children) Rules, 2007 are strictly being applicable only to determine the age of a child and conflict with law and the aforesaid statutory provision should be basis of determining the age even of a child who is a victim of the crime. There is hardly any difference in so far as issue of minority is concerned between a child in conflict with law and a child who is victim of the crime. Therefore, it would be just and appropriate to apply Rule 12 of Juvenile justice (Care and Protection of Children) Rules, 2007 to determine the age of the prosecutrix. In the present case, applying the same principles in terms of the scholar register the age of the victim was determined and she was found to be a minor on the date of the commission of offence i.e. below 18 years.
Signature Not VerifiedThe aspect that victim turning hostile on giving statement in favour of the SAN Digitally signed by SHALINI LANDGE accused was also taken note of under the POCSO Act i.e. special enactment was Date: 2022.03.11 18:13:18 IST also taken note of by the Hon'ble Supreme Court in the case of Betak Valmik Vs. 7 State of M.P. reported in AIR 2018 SC 4760 wherein, the Hon'ble Supreme Court had made it clear that "in matters of sexual abuse, sexual assault and penetrative sexual assault, the court shall not be silent where there is a concrete finding of court that the offence was actually occurred, where the victim or the prosecutrix is a minor which has been proven beyond reasonable doubt and the victim or the prosecutrix turned hostile. In such cases, the accused shall not be freed and will have to bare the consequences of the prescribed Penal Laws. It was considered that the prosecutrix was confronted under Section 145 of the Evidence Act with her statement under Section 161 of the Cr.P.C. confirming the sexual assault and thereafter she turned hostile contending that she has suffered injuries by a fall but the aforesaid aspect was not considered by the court as such injuries cannot be caused merely by falling. Where the accused allegedly committed rape on the prosecutrix who was admittedly a minor and the serological report establish sexual assault and the victim corroborated by the presence of semen on the clothes of the prosecutrix and accused. The Hon'ble Supreme Court has held that where a child is a minor which is backed by a strong evidence and also evidences proved commission of a crime, the court shall not let the accused have a benefit of doubt merely on the ground that the prosecutrix has turned hostile. The accused will not be entitled to bail or acquittal in these cases.
The overall facts and circumstances of the case are required to be seen and whether the medical evidences which are collected is having any corroboration with the commission of offence.
In the present case there is no dispute that victim is a minor. Physical relations made by her with the present applicant is not disputed virtually the same is been admitted on the ground that she is a consenting party to the act but the fact remains that whether the consent of a person who is below 18 years of age can be considered to be a consent specially in the cases of POCSO Act. As discussed herein above, it is a special enactment enacted by the legislature taking note of the fact that such cases are increasing in the society at large and just to give protection to the victims below 18 years of age even the age of a child is considered to be 18 Signature Not Verified SAN Digitally signed by SHALINI LANDGE Date: 2022.03.11 18:13:18 IST years and strict adherence to the words used in the act is to be done as per the 8 judgements of the Supreme Court discussed hereinabove. Meaning thereby, the liberal meaning for the age cannot be considered. Lenient interpretation of the age of a child or the definition of a child cannot be done when such is a circumstance, the basic object of the act is to be taken note of and the child below 18 years of age and above 16 years of age cannot be considered to have made physical relations with the consent.
Taking into consideration the overall facts and circumstances of the case and the law discussed hereinabove and keeping in mind the object of introduction of this POCSO Act, this court does not deem it appropriate to allow this application.
Application is hereby rejected.
(VISHAL MISHRA) JUDGE Sha Signature Not Verified SAN Digitally signed by SHALINI LANDGE Date: 2022.03.11 18:13:18 IST