The central legal point established in the judgment is that in cases involving minors and sexual offenses, the age of the victim and the applicability of the POCSO Act are crucial factors in determining consent and guilt.

ORDER :

This petition is filed under Section 439 of Cr.P.C seeking regular bail of the petitioner in Crime No.193/2019 registered by Girinagar Police Station, Bengaluru, for the offence punishable under Sections 363, 366 and 376 of IPC and Sections 5(l) and 6 of the POCSO Act.

2. Heard the learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State.

3. The factual matrix of the case is that the father of the victim girl – Monisha, aged about 16 years studying in Bharath Matha Women’s College in 1st PUC, lodged a complaint on 29.11.2019 alleging that as usual, she used to go to college and return. That on 28.11.2019 she went to college at about 8.00 a.m. and she did not return. Thereafter, he made enquiries with her friends, she did not attend the college and also she did not return to home. Hence, he has lodged the missing complaint and the same is registered in Crime No.193/2019. The case is registered for the offence punishable under Section 363 of IPC. Thereafter, investigation was conducted and victim was traced along with this petitioner and in the Crime No.193/2019 added the other offences punishable under Sections 366 and 376 of IPC and Sections 5(l) and 6 of POCSO Act, 2012.

4. It is the contention of the learned counsel for the petitioner that this petitioner has been falsely implicated in the case and he has not committed any offences as alleged in the charge sheet. The age of the victim is 16 years and the police in the charge sheet made an allegation that she is a minor and there is no documentary proof with regard to her date of birth. It is further contended that there is no external injuries to the victim and it clearly indicates that the sexual act is not against her will. The petitioner and the victim both fell in love and the complaint averment does not disclose any ingredients of the offence alleged against the petitioner. The learned counsel appearing for the petitioner also submits that in the statement recorded under Section 164 of Cr.P.C., there is no averment that sexual act was against her will. Hence, in view of completion of the investigation and charge sheet already been filed, there is no need to have the custodial trial. Hence, the petitioner may be enlarged on bail.

5. Per contra, learned High Court Government Pleader for the respondent-State would contend that the victim is aged about 16 years, two months and medical records discloses that she was subjected to sexual act and the doctor has opined in the report that she was subjected to sexual act recently. Even if the victim has given the consent, the same does not amount to a consent at all since, she is a minor. Learned High Court Government Pleader would contend that under Section 2(d) of POCSO Act, it is specific that below age of 18 is a minor and hence, the petitioner is not entitled for bail. The learned High Court Government Pleader also relied upon the order passed in Crl.P.No.20122/2016 dated 13.02.2017 and referring this judgment, the learned High Court Government Pleader would contend that, it does not amount to a consent. Whether it is a consensual sexual act or against the wish of the victim, has to be tested during trial and this Court has specifically mentioned that when the minor girl was subjected to sexual act, the benefit cannot be extended in favour of the petitioner and prays this Court to dismiss the bail petition.

6. Having heard the arguments of learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State, this Court has to examine whether it is a fit case to exercise the powers under Section 439 of Cr.P.C.

7. Having considered the material available on record, it is clear that the investigation has been completed and charge sheet has been filed. The records disclose that the victim girl is aged about 16 years and 2 months. In the complaint, a specific allegation is made against this petitioner that he subjected the victim girl to sexual act.