[POCSO case] Consent by minor has no value in the eyes of law: Bombay High Court

Consent of a minor, obtained either by threat or otherwise, has no value in the eyes of law, the Nagpur Bench of Bombay High Court recently observed while rejecting bail plea of a person accused of raping a minor girl [Peer Mohammad Ghotu Mohd. Ismail v. State of Maharashtra & Anr]..A Bench of Justices VM Deshpande and Anuja Prabhudessai was informed by the appellant that there was a love affair between the couple and hence the sexual relationship between them was consensual.However, the Court deciphered from the school leaving certificate of the survivor that she was below 18 years of age. “The consent obtained by giving threat and/or even simple consent by a minor has no value in the eye of law. Therefore, at this stage, the learned counsel for the appellant cannot press into service the aspect of consent," the Court held..The accused-appellant, Peer Mohammad, had been arrested for offences punishable under the Indian Penal Code, the Protection of Children from Sexual Offences Act (the POCSO Act), and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act for raping a minor girl.After his regular bail application was rejected by the Additional Sessions Judge, the appellant approached the High Court. His counsel, advocate Mir Nagman Ali, contended that further imprisonment of the appellant was unnecessary as the investigating officer had completed the investigation and filed chargesheet.He submitted that the appellant and survivor had a love affair and that she had willingly eloped with him and spent about 45 days at his residence in Kaushambi, Uttar Pradesh..The Court examined the chargesheet and deduced that that survivor did not have any affection towards the appellant and it was the appellant who tried to persuade her to go wit him against her wish. “Her statement would show that the appellant had extended threat to her to kill her younger brother aged about 3½ years, which was precisely the reason for the victim to accompany the appellant,” the order noted.The Court also clarified that the age of the survivor would be a matter of a trial.Thus, taking into account the survivor's statement, medical opinion, and statements by other prosecution witnesses, the Court decided not to exercise its power to release the accused on bail.The fact that the appellant had no roots in Maharashtra was also taken into account by the Court to dismiss the plea..[Read Order]

[POCSO case] Consent by minor has no value in the eyes of law: Bombay High Court

Satyendra Wankhade

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