Expressing concern over the "unfortunate" practice of police invoking provisions of sexual assault at the behest of a girl's family objecting to her involvement with a boy, the Delhi High Court has said the rigor of POCSO law is being "misapplied" and "misused".
The high court, granting bail to a 21-year-old man who was accused of raping a minor girl with whom he claimed to be in a relationship, said it cannot ignore the friendship between the two and added that it appeared the FIR was lodged at the insistence of the girl's family which was embarrassed on finding out that she was pregnant and this would lead to a social backlash in the neighbourhood.
"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 short question which arises is as to whether the petitioner (man) 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," Justice Subramonium Prasad.
The court said the age of man and girl, photographs which categorically pointed towards a relationship between the two and discrepancies in the statements given at the time of recordings of medical report, FIR and before the magistrate are all mitigating factors which tilt the balance towards grant of bail to the accused.
It said it appeared that to avoid social embarrassment and to get the pregnancy medically terminated, this FIR has been filed giving it a colour of sexual exploitation and bringing it in the ambit of the Protection Of Children from Sexual Offences (POCSO) Act which envisages abolition of child abuse.
The court, which noted that the girl has no objection to grant of bail to the man, said they both are more or less of the same age and this fact cannot be overlooked that the accused is only 21-year-old, having a complete life ahead of him.
The court was informed that after being released on bail, the man would stay with his parents in Uttar Pradesh's Hardoi and that the address has been verified by the prosecution.
The man was directed to furnish a personal bond of Rs 50,000 with two sureties of the like amount and not to leave the district of Hardoi unless for appearing in court proceedings.
"The petitioner shall not, directly or indirectly, tamper with evidence or try to influence the witnesses. Violation of any of these conditions will result in the cancellation of the bail given to the petitioner," the court said.
According to the FIR, the girl complained that she was 16 years of age and a student of class 12th and in January last year, the man used to stalk her while she was on her way to school and he had expressed his intention to make friends with her but she resisted.
It alleged that during the nationwide COVID-19 lockdown last year, when she was returning from a friend's place, the man stopped her and took to a house and gave her some snacks after which she became unconscious and fainted.
It alleged that when she woke up, she felt pain and realised that she had been raped but did not disclose it to her family at that stage.
The girl alleged that after sometime when she started vomiting, she was taken to a doctor where it was revealed that she was pregnant and a case was lodged against the man and later her pregnancy was terminated.
The man, while seeking bail, submitted that he had developed friendship with the girl in school and while the girl was 18-year-old, he was 21-year-old and that the complainant has been coerced by her family members to file the FIR.
