“Love Affair” No Ground For Bail When Minor Involved, Says Supreme Court

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The Supreme Court has said that grounds like “there was a love affair” between the girl and the accused and there was alleged “refusal to marry” will have no bearing on the grant of bail in the POCSO case.

A bench of Justices DY Chandrachud and Surya Kant set aside the order of a single judge of Jharkhand High Court granting bail to an accused in a case registered under the Protection of Children from Sexual Offences (POCSO) Act 2012 and IPC.

It said, “The High Court was manifestly in error in allowing the application for bail. The reason that from the statement under Section 164 and the averments in the FIR, it appears that ‘there was a love affair’ between the appellant and the second respondent and that the case was instituted on the refusal of the second respondent to marry the appellant, is specious”.

The bench said, “Once, prima facie, it appears from the material before the Court that the appellant was barely thirteen years of age on the date when the alleged offence took place, both the grounds, namely that ‘there was a love affair’ between the appellant (girl) and the second respondent (accused) as well as the alleged refusal to marry, are circumstances which will have no bearing on the grant of bail”.

The bench in its order passed on Monday said that “having regard to the age of the prosecutrix and the nature and gravity of the crime, no case for the grant of bail was established”.

“The order of the High Court granting bail has to be interfered with since the circumstances which prevailed with the High Court are extraneous in view of the age of the prosecutrix, having regard to the provisions of Section 376 of IPC and Section 6 of POCSO. We accordingly set aside the impugned order of the High Court dated August 2, 2021”, it said. The bench directed that the accused should surrender forthwith to custody.

Senior advocate Anand Grover and advocate Fauzia Shakil, appearing on behalf of the girl, submitted that the date of birth of the victim is January 1, 2005, and at the time of the alleged offence, she was just about thirteen years of age.

On the contention of advocate Rajesh Ranjan, appearing for the accused, that he is a student studying in an engineering college and he will not get bail throughout the trial, the bench requested that in the facts and circumstances, the Special Judge, POCSO, who is in charge of the trial shall complete the trial within six months from the date of receipt of a certified copy of this order.

Mr Grover submitted, “Having regard to the provisions of Section 376 IPC and POCSO, the reasons which weighed with the High Court are, ex facie, specious and the application for bail ought not to have been allowed”.

Mr Ranjan on the other hand submitted that though the charge-sheet has been submitted, there has been no recovery of the allegedly obscene videos nor is there any medical evidence to indicate that the girl had any sexual contact with the accused.

The top court noted that on January 27, 2021, an FIR was registered in Kanke police station of Ranchi district for offences punishable under Section 376 of the Indian Penal and provisions of the POCSO Act.

In the FIR, it was alleged by the petitioner girl that, at the material time, when she was a minor, the second respondent (accused) had taken her to a residential hotel and had entered into a sexual relationship on the assurance of marrying her.

She had alleged that the accused was refusing to marry her and that he had sent certain obscene videos to her father.

It noted that the application for anticipatory bail filed by the accused was rejected by the Special Judge, POCSO, Ranchi on February 18, 2021, after which he surrendered on April 3, 2021, and sought bail.

The police filed the charge sheet before the Special Judge on May 24, 2021, and his bail plea was allowed by the Single Judge of the Jharkhand High Court.

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