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POCSO Act - Anticipatory Bail Application - Effect of Presumption under Section 29 [Order]

Protection of Children from Sexual Offences Act, 2012 - S.29 - Criminal Procedure Code, 1973 - S.438 - Anticipatory Bail - Presumption as to certain offences - While considering the bail application the court has to taken into consideration the effect of the presumption envisaged under Section 29 of the Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
B.A. No. 2798 of 2018
Dated this the 12th day of June, 2018
CRIME NO.452/2018 OF ERNAKULAM SOUTH POLICE STATION, ERNAKULAM
PETITIONER/ACCUSED
ANAND S TOMER
BY ADV.SRI.SANIL KUMAR 
RESPONDENT
STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.D. CHANDRASENAN
O R D E R
This is an application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure.
2. The petitioner is the accused in the case registered as Crime No.452 of 2018 of the Ernakulam Town South Police Station under Sections 417, 363 and 376 I.P.C. and also under Sections 3 read with 4, 5 read with 6 and 11 read with 12 of the Protection of Children from Sexual Offences Act, 2012.


3. The prosecution case is as follows. The petitioner is a native of Madhya Pradesh. He is working as Seaman in the Indian Navy at the Naval Base in Kochi. The victim girl is also a native of Madhya Pradesh. The petitioner and the victim girl are neighbours at their native place in Madhya Pradesh. The girl was in love with the petitioner from the year 2013 onwards. The petitioner had promised her that he would marry her when she attains majority. The girl reached Kochi on 21.2.2016 by train. It was the petitioner who reserved ticket for her journey to Kochi. The petitioner took her to the Star Lagoon Hotel in Kochi where he was staying. They resided together in the hotel till 26.2.2016. During that period, the petitioner had sexual intercourse with her several times. On 26.2.2016, the petitioner and the girl returned to their native place. Subsequently, the petitioner rejected the request of the victim girl and her patents to marry her and he has cheated the girl. When the petitioner had sexual intercourse with the girl, she was aged below 18 years and his act amounts to the offence of rape.
4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary.
5. Learned counsel for the petitioner submitted that the parents of the girl had approached the parents of the petitioner with a proposal for marriage between the petitioner and the girl but the parents of the petitioner rejected the proposal. Learned counsel would submit that the girl and her parents have animosity towards the petitioner for this reason and they have falsely implicated the petitioner in the case with the intention to see that he would not marry any other woman. Learned counsel would further submit that the petitioner is totally innocent and he was not involved in the incident as alleged by the prosecution. On the other hand, learned Public Prosecutor would submit that there is evidence to find that the petitioner and the victim girl resided together in the hotel in Kochi and that the petitioner had sexual intercourse with her during that period.
6. The case diary contains copy of the birth certificate of the victim girl. It shows that her date of birth is 12.3.1998. It means that she was just below the age of 18 years during the period of the incident, that is, from 21.2.2016 to 26.2.2016.
7. The victim girl has given statement to the police regarding the acts allegedly committed by the petitioner. The Magistrate concerned has recorded her statement under Section 164 Cr.P.C. In both statements the victim girl has narrated the details of the incident. She has categorically stated that during the period from 21.2.2016 to 26.2.2016, the petitioner had sexual intercourse with her when they resided together in the Star Lagoon Hotel in Kochi. The statement of the victim girl also shows that it was the petitioner who reserved the ticket for her journey from Gwalior to Kochi. The statements given by the victim girl to the police and the Magistrate reveal the complicity of the petitioner in the crime.
8. The case diary also contains statements of the employees of the hotel to the effect that the petitioner had managed to obtain a room for the victim girl in the hotel on the pretext that she was his sister. The statements of these witnesses also reveal that they saw the petitioner and the victim girl together in the hotel from 21.2.2016 onwards.
9. Prima facie, there are sufficient materials to show the complicity of the petitioner in the crime. Section 29 of the Protection of Children from Sexual Offences Act, 2012 states that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. While considering the bail application filed by a person accused of the offences mentioned above, the court has to taken into consideration the effect of the presumption envisaged under Section 29 of the Act (See State of Bihar v. Rajballav Prasad : AIR 2017 SC 630
10. The victim girl was aged below 18 years when the petitioner had allegedly committed sexual intercourse with her. As per Clause sixthly of Section 375 I.P.C., after the amendment made by Act 13 of 2013, sexual intercourse with a woman, with or without her consent, amounts to rape when she is under the age of 18 years.
11. The age of consent for sexual intercourse is definitively 18 years. Therefore, under no circumstance can a child below 18 years of age give consent, express or implied, for sexual intercourse. The age of consent has not been specifically reduced by any Statute. There is no question of a girl child giving express or implied consent for sexual intercourse. The age of consent is statutorily and definitively fixed at 18 years and there is no law that provides for any specific deviation from this (See Independent Thought v. Union of India : AIR 2017 SC 4904).
12. A minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. A minor girl can be easily lured into giving consent for sexual intercourse without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so - called consent given by a girl who is less than 18 years of age. Even when there is consent of a girl below 18 years, the other partner in the sexual act is treated as a criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual.
13. In the instant case, the case diary also reveals that the petitioner has absconded. The authorities of the Navy have declared him as deserter and issued warrant for his arrest.
14. Learned counsel for the petitioner would submit that though the incident alleged had occurred in the year 2016, the complaint to the police was filed only in the year 2018 and the undue delay would indicate the falsity of the case against the petitioner. This submission cannot be accepted. The victim girl and her parents may or would have been under the impression that the petitioner would marry the girl. May be, on account of the confidence and trust in him, they did not report the matter to the police on the belief that he would keep his promise that he would marry the girl. It is only when the petitioner refused to marry the girl, they had no other way but to make a complaint to the police. The delay in reporting the matter to the police, in these circumstances, is not at all fatal to the prosecution case.
15. In the aforesaid circumstances, considering the nature and gravity of the offences allegedly committed by the petitioner, I am not inclined to grant him the benefit of pre-arrest bail. The petition is liable to be dismissed.
In the result, the prayer for granting anticipatory bail to the petitioner is rejected and the petition is dismissed. It is made clear that the observations in this order with regard to the merits of the prosecution case have been made only for the purpose of deciding the application for bail.

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