Libertatem Magazine

Victim’s Consent For the Sexual Act Is Immaterial As She Was a Minor During the Incident: Bombay High Court

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The Appellant was arrested under Section 376 (2) (n) of Indian Penal Code, Section 4, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 and Section 3(1)(r), 3(1)(w), 3(2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Being aggrieved by the order passed dated 19.12.2017, this appeal was filed.


Between 2016 to January 2017, the Appellant resided in the locality where he made an acquaintance with the victim girl and committed the said offences. The victim was a minor at the time of the alleged incident, and during that period, she conceived and delivered a baby. 

Arguments before the Court

Learned counsel of the Appellant submitted that there is no direct or indirect connection of the Appellant with the alleged offence. The delay in lodging the complaint was pointed out as the alleged incident occurred between December 2016 to January 2017, but the complaint was lodged on 27.06.2017. Learned counsel submitted that the relations of the victim with the Appellant were consensual as during the alleged incident she was aged about 16 years and 5 months and was studying in 12th standard. Hence, according to the counsel, she had attained maturity. It was stated that the girl was pressured by her mother to lodge the FIR against the Appellant. Learned counsel appearing for Respondent-State drew attention to the statement of the victim girl and other accompaniments of the charge sheet.

Court’s observation

The evidence collected by the Investigating Officer disclosed the involvement of the Appellant in the alleged commission of an offence. The case of Dinesh Sharma & others Vs. State & Another was cited. In the said case, the Delhi high court observed that the Supreme Court had categorically stated that the High Court could not quash heinous crime like rape by exercising power under Section 482 Cr.P.C., even if the prosecutrix and the accused entered into a compromise. This judgment was binding on the Delhi High Court under Article 141 of the Constitution of India. In the Statement of Objects and Reasons of the POSCO Act, it is mentioned that Article 15 and 39 gives power to the State to make special provisions for children and that the State shall direct its policy towards securing that the tender age of children is not abused, and their childhood and youth are protected against exploitation. It was also mentioned that exercising jurisdiction under Section 482 Cr. P.C to quash an offence under POCSO Act would go against the intention of the legislature, i.e., to protect the interests of children. As the victim was minor, the contention that there was consensual sex deserves no consideration. Moreover, the statement of the victim, which was recorded, showed that she never consented to the appellant for sex.

Court’s judgement

The appeal stands dismissed. As the charge sheet has already been filed, the Court directed the concerned Trial Court to expedite the trial.

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