IMPORTANT POINT
In cases involving minors, any consent given is legally irrelevant, and the protection of minors from sexual exploitation is paramount, as established by the provisions of the IPC and the POCSO Act.

JUDGMENT/ORDER

BHARAT P.DESHPANDE, J. - Heard Mr. Sajid G.Varshani, learned counsel for appellant, Mr. V.A.Thakre, learned APP for respondent no.1 and Mr. S.G.Karmarkar, learned counsel for respondent no.2.

2. Admit. Heard finally at the admission stage with consent of learned counsel appearing for the parties.

3. This is an appeal under Sec. 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, thereby challenging impugned order dtd. 23/1/2023 rejecting bail application filed by the appellant.

4. Reply has been filed on behalf of respondent nos.1 and 2 opposing the present appeal.

5. The appellant was arrested on 2/9/2022 in Crime No.460/2022 registered at Arni Police Station, District Yavatmal, for the offences punishable under Ss. 363, 366, 366-A, 212, 376, 376(2) (n), 506 read with Sec. 34 of Indian Penal Code, Ss. 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), Ss. 3(2) (v), Ss. 3(2) (v-a) and Sec. 3(1)(w)(i) (ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

6. In nutshell, it is the contention of the learned counsel for the appellant that there is love affair between the appellant and the victim and that the victim volunteered to accompany the appellant at different places. The victim is 17 years of age and a matured girl having all understanding and there was consensus amongst them to move from one place to another and also with regard to physical relationship.

7. The learned counsel for the appellant would then submit that since the Charge-sheet is already filed and other two co-accused persons are released on bail, no purpose would be served in rejecting the bail application. He would submit that the appellant is ready to reside at different place and undertake not to enter the village where the victim resides. He then placed reliance on the following decisions of this Court:

(i) Anil Shankar Mallav Vs. The State of Maharashtra and another (Bail Application No.2754/2021 dtd. 12/12/2021); and

(ii) Vishal Prakash Kharade Vs. The State of Maharashtra, through Police Station Officer, Police Station Tiwasa, Dist. Amravati and another (Criminal Application (BA) No.758 of 2022 dtd. 24/8/2022).

8. The learned APP appearing for the State as well as learned counsel appearing for respondent no.2 vehemently opposed the present appeal on the ground that it is not at all a simple love affair but, it is a conspiracy and the appellant somehow convinced the victim, who was minor, to leave the residence of her grandfather and to accompany him to different places only under the pretext of having love affair and then sexually exploited her that too without her consent and against her wish. Both the learned counsels would further submit that that since the victim was minor, a question of consent would have no relevance. The appellant, if released, would certainly try to influence the victim as well as her relatives and there is possibility of winning over such witnesses or threatening them with the aid of other accused persons.

9. The learned Trial Court, after considering entire material placed with the Charge-sheet, observed that the victim was lured and trapped under the guise of showing love and she was taken away from the lawful guardianship. First of all, the appellant took the victim to Surat and when co-accused persons intimated him, about missing report and the police are in search of them, he shifted the victim from Surat and went to Hyderabad and thereafter to Goa via Mumbai. At these places, the appellant had sexually intercourse against the wish of the victim. She was not allowed to move out of the rented premises whenever the appellant used to go out.

10. We have carefully perused the documents attached to the Charge-sheet. It is clear that the victim as on the date of the offence was below 18 years of age. Statement of the victim recorded by the police under Sec. 161 of the Code of Criminal Procedure and thereafter her sta