Minor’s consent or consent obtained by giving threat, holds no legal value: Bombay HC

Read Judgment: Peer Mohammad Ghotu Mohd Ismail vs. State of Maharashtra & Anr. 

Pankaj Bajpai

Nagpur, February 9, 2022: While answering on issues of entitlement of bail in a POCSO case,the Nagpur bench of the Bombay High Court has opined that consent obtained by giving threat and/or even simple consent by a minor has no value in the eyes of law. 

The Division Bench of Justice V. M. Deshpande and Justice Anuja Prabhudessai confirmed the rejection of the bail application of Peer Mohammad (appellant-accused) and observed that the statement of the victim coupled with medical opinion, prima facie, supported the charge of rape and when such statement corroborated with statements of the other prosecution witnesses clearly implicated the accused. 

Going by the background of the case, the Applicant was arrested for the offence punishable u/s 363, 376(1)(i)(j), 506 of the IPC, u/s 4 and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and u/s 3(1)(W)(i)(ii) and 3(2)(v) of the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Although the applicant had applied for bail, the Additional Sessions Judge rejected such application u/s 439 of the CrPC. 

After considering the submissions, the High Court found that the School Leaving Certificate, prima facie, indicated that the victim was below 18 years of age and she is “child” within the meaning of clause (d) of Section 2(1) of the POCSO Act. 

Considering the submission of the appellant’s counsel that there was no primary document contained in the charge-sheet to show the age of the victim, the High Court said that such aspect can be considered during the course of the trial since, during trial, there will be an opportunity for the prosecution as well as the victim to prove her exact date of birth.

Justice Deshpande perused the statement of the victim which clearly showed that at no point of time the victim was having any type of love or affection towards the appellant and it was the appellant, who tried to persuade her even against her wish. 

Not only that, the victim’s statement would show that the appellant had extended threat to the victim to kill her younger brother aged about 3½ years, which was precisely the reason for the victim to accompany the appellant, added the Division Bench. 

The High Court however found that the appellant is a resident of the State of Uttar Pradesh and he has no roots in Maharashtra, and therefore, this was not a case wherein this Court should exercise its jurisdiction to release the appellant on anticipatory bail.

Accordingly, the High Court dismissed the criminal appeal and confirmed the order passed by the Additional Sessions Judge dated October 22, 2021 relating to the Bail Application in question.