An appeal was filed against the conviction of the Appellant under provisions of the POCSO Act.

The Court observed from the circumstances that there was no doubt that there was consent to sexual intercourse between the parties. Further, a perusal of the documents attached to indicate the age of the prosecutrix indicated that she was not more than 18 years at the time of commission of the offence. The accused had repeated sexual intercourse with her taking advantage of the fact that she is alone in the house in the absence of her parents and taking advantage of her tender age till she became pregnant. Hence, the accused was rightly convicted under the provisions of the POCSO Act also.

A petition had been filed under Sec. 482 of the Cr.P.C. for quashing of FIR filed under the IPC and POCSO Act on the grounds that the parties had achieved a compromise.

The Court dismissed the petition. On the point of consent, the Court observed that once the consent of the minor was immaterial, it was so for all stages of the trial including stage of compromise – “So far as the order passed by the Coordinate Bench of this Court in the case Pankaj Parmar(supra) is concerned, it has not taken note of the judgments passed by the Supreme Court in the case of Madanlal (supra), Laxmi Narayan (supra), Shimbhu (supra) as well as the order passed by Supreme Court and the Delhi High Court in the case of Vikash Kumar @ Sonu (supra). The Coordinate Bench of this Court has also not taken note of the fact that the POCSO Act, 2012 is a ”Special Act” and thus, in the light of the judgments passed by the Supreme Court in the case of Gian Singh (supra) and Narinder Singh (supra), the compromise cannot be accepted where the accused is facing trial for offence punishable under the Special Act. The Coordinate Bench of this Court has also not taken note of the provisions of Sections 375 Sixthly of IPC which provides that sexual intercourse with or without consent of a girl below 18 years of age would be ”rape”. Thus, when the consent of minor prosecutrix is immaterial at the time of commission of offence, then under no circumstances, her consent would become relevant for the purpose of compromise.”

In this case, a Criminal Appeal had been filed against order of conviction wherein it was argued that the sexual intercourse was carried out with the consent of the prosecutrix.

The Court observed that it was clear from the Court record that the consent was there however, in view of the proseuctrix being under the eighteen years of age, her consent was immaterial and the conviction was upheld.

A bail petition had been filed in a case where offences were alleged to have been committed under the IPC and the POCSO Act. The victim’s age, it was alleged, was more than 17 years and she was a consenting party.

The Court observed that the accused/petitioner herein has admitted that the allegation made against him but he was taking shelter of consent given by the victim. The Investigating Officer in the case had obtained a certificate from school authorities wherein the victim had studied. It was stated in this certificate that date of birth of victim was 03.04.2001, the alleged incident has occurred on 15.02.2018. Therefore it was crystal clear that as on the date of the alleged incident the victim was a child within the meaning under POCSO Act. Under these circumstances, the contentions of the petitioner that victim is a consenting party and therefore he may be enlarged on bail could not be accepted.

The accused challenged the judgment where he was convicted under section 363, 366, 376 of IPC. In support of the challenge, the counsel stated that the prosecutrix went willingly and was in love with the accused. Furthermore, her age was not proven, she refused medical examination and there are contradictions in her statement. The counsel for the State stated that the prosecutrix was 13 years 9 months according to her school leaving certificate and was pregnant at the time of recovery – due to her age, consent is immaterial.

The High Court rejected the accused’s argument that the age was unproven. Furthermore, they stated that “since the consent of a girl below the age of 16 years is immaterial, the same cannot be treated as a mitigating circumstance so as to award a sentence lesser than 7 years rigorous imprisonment…”. However, they modified the sentences from 10 years to 7 years for IPC 376 and from 7 years to 4 years for IPC 363 and 366.

An application was moved for regular bail under section 439 of Cr.P.C., as the applicant/accused was prosecuted for the offences punishable under sections 376, 363, 366A of the Indian Penal Code and under section 3, 4, 5 and 6 of the Protection of Children from Sexual Offences Act, 2012. The age of the prosecutrix was 15 years old.

The Court held that in cases similar to the present, where the minor prosecutrix is between the age group of 15 to 18 years, and the consent of the prosecutrix is obvious, then the fact that the prosecutrix consented to elope with the applicant/accused should be a mitigating factor while determining the bail of the applicant.

The Court observed that – “Undoubtedly, a minor girl is to be protected under the law, as there are number of incidents of sexual abuse of minor girls and therefore, there is a special legislation of POCSO in the year 2012 and amendment in sections 375 and 376 of the Indian Penal Code in 2014. The judiciary takes a very serious note of sexual offences against women and especially against the minor girls. In the present case, the facts are clear that prosecutrix and applicant/accused were in love with each other. The prosecutrix was a minor girl of 15 years. They both eloped to marry. The trial Court rejected the Bail Application by its order dated 31st March, 2015 mainly on the ground that the girl is 15 years old and her consent is immaterial and if at all the marriage was performed between the applicant/accused and prosecutrix, it was against the provisions of Child Marriage Restraint Act. Legally she is below the age of consent. However, in many such cases, a boy who has eloped and established sexual relations with the girl, is 19 to 22 years of age and also in love with the prosecutrix. Under such circumstances, considering the law, facts and discretionary powers vested with the Court, it is difficult for the Court to decide the issue of regular bail under section 439 of Cr. P.C.”

In these cases, the Court observed that the Court should take into the following considerations:

“ The overall considerations while deciding such applications can be summed up as –
When a boy and a minor girl are in love with each other and chose to live together without consent of their parents, then the following factors are to be considered:
(i) What is the age of the prosecutrix, who is minor.
(ii) Whether the act is violent or not.
(iii) Whether there are antecedents or not.
(iv) Whether the offender is capable of repeating the Act or not.
(v) Whether there is likelihood of threats or intimidation, if at all the boy is released.
(vi) Whether any chance of tampering with the material witnesses when their statements are recorded.
(vii) It is also to be taken into account in such cases that a boy in his early 20’s deserves to get employment and to plan, stabilize and secure his future.”