HC grants bail to youth accused of raping minor.

 The Bombay HC has granted bail to a 25-year-old man who was in jail since Apr 2018 for raping a 14-year-old girl on grounds that the victim’s conduct indicates she left her home of her own free will & “she had surrendered to the physical desires of the applicant out of her love & affection for him”. The Delhi High Court today granted bail to a youth accused of raping a minor saying that their physical relationship was consensual.A bench of Justice Pratibha Rani granted bail to Monu, a resident of Punjab, on a personal bond of Rs 25,000 with one surety of the like amount. The order was passed by justice Sandeep Shinde on Jan 9.

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The incident took place on Apr 18, 2018, when the minor girl, a resident of Malad, left her home at 1am on the pretext of going to the toilet. When she did not return, her father filed a complaint with the police. Meanwhile, according to a statement given by the girl, she & her boyfriend travelled by train to various places including Mahabaleshwar &Bhusawal in Maharashtra, & Delhi, before reaching Varanasi in Uttar Pradesh, their home town.There, the girl’s relatives convinced the couple to return to Mumbai, which they did on Apr 26. The man was arrested at Mumbai airport under various sections of the Protection of Children from Sexual Offences (POCSO) Act.The police registered an FIR and Monu was arrested under sections 363 (kidnapping)and 376 (rape) of the IPC and also under relevant sections of Protection of Children from Sexual Offences (POCSO) Act.Justice Shinde cited a Top Court order from 1965 (S Varadarajan vs State of Madras) to grant the man bail, but restricted him from living in the vicinity of the minor. The man’s lawyer said before the court that the minor was in love with her client & though he hadn’t made any promises of marriage, she went with him, after which they had physical relations. She added that her client was in jail since Apr 2018 & willing to cooperate with the investigators.

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  1. Punishment for kidnapping.—Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

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 Section 376 in The Indian Penal Code

1[376. Punishment for rape.—

(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

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(2) Whoever,—

(a) being a police officer commits rape—

(i) within the limits of the police station to which he is ap­pointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s insti­tution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

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Additional public prosecutor Avinash Kamkhedkar opposed the bail on the grounds that the victim was a minor & the accused was booked under the Protection of Children from Sexual Offences (POCSO) Act which doesn’t allow bail to perpetrators of crime against minors. The court disagreed.Senior advocate & women’s rights activist Flavia Agnes told News Agency on Monday that such an order would set a wrong precedent for perpetrators of sexual crimes, as there is no way to stop them from enticing more minors once they are out on bail. “Though the minor may have gone with the accused of her own free will, how can it be assumed that she understands the ramifications of her actions? Though the order restrains the accused from meeting the victim, there is no restraint on him from enticing other minors,” Agnes said.

Senior advocate Dr Sujay Kantawala said a general assumption can’t be made about the applicant, as each case is different. “Protection of Children from Sexual Offences (POCSO) has stringent conditions, but the voluntary conduct of the minor victim, prima facie, weighed in favour of the accused as she had voluntarily had sexual intercourse. The court has correctly imposed strict conditions while granting bail, however, it is critical to ensure that these conditions aren’t violated.”

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For case specific advice, please contact Best Criminal Bail POCSO Lawyers of Chandigarh Panchkula Mohali for Cyber Crime related cases in High Court Punjab Haryana & District & Sessions Court.

This post is written Aman Dube.

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