Minor’s Consent For Sexual Intercourse Relevant For Deciding Bail Application Of ‘Rape’ Accused: HP HC

In a reasonable, recent, remarkable and righteous judgment titled Rohit Sharma vs. State of Himachal Pradesh in Cr.MP(M) No. 2001 of 2020 delivered as recently as on November 11, 2020, the Himachal Pradesh High Court has granted bail to a man accused of ‘raping’ a minor girl on the ground that the girl had consented to the sexual intercourse. Justice Anoop Chitkara of Himachal Pradesh High Court also conceded that, “Although, she could not have consented for sexual intercourse as well as leaving custody of her custodian but for deciding the bail, her conduct is sufficient to grant bail to the petitioner.”

To start with, the ball is set rolling in para 1 of this notable judgment authored by Justice Anoop Chitkara of the Himachal Pradesh High Court wherein it is observed that, “A boy aged 20 years, who is incarcerating upon his arrest for alluring and raping a minor girl, has come up before this Court seeking regular bail on the grounds that the family of the girl forced her to lodge a false complaint to break their love affair.”

What next follows is then stated in para 2 that, “Based on a complaint, the police arrested the petitioner on Nov 1, 2020, in FIR No. 195 of 2020, dated 01.11.2020, registered under Sections 363, 366A & 376 of the Indian Penal Code, 1860 (IPC), Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Section 3 of the SC & ST Act, in Police Station Theog, District Shimla, Himachal Pradesh, disclosing cognizable and non-bailable offences.”

While elaborating on the facts of the case, it is then aptly and appropriately pointed out in para 3 that, “Briefly, the allegations against the petitioner are that the father of the victim informed the Police Station Theog on Nov 1, 2020, regarding allurement of her daughter by the petitioner vide a written complaint. He informed the police that his daughter, who is aged 16 years, has been allured by the petitioner Rohit Sharma on 29th October, 2020 at 3.30 p.m. His daughter stayed with him up to 31st October, 2020 and he also committed rape on her. However, in the evening of 31st October, 2020, he dropped her back. Based on such information the police registered the FIR mentioned above.”

To put things in perspective, it is then laid bare in para 4 that, “During investigation the victim informed the police that she knew petitioner Rohit for the last three-four months and was in touch with him through Facebooks as well as phone. She also informed that two-three weeks ago, petitioner had visited her home and had taken her to Primary School Kandi where in the corridor they had indulged in coitus. She further informed the police that at 9 a.m. on 29th October, 2020, Rohit called her and told her to accompany him for two-three days. Upon this at 3.20 p.m. she left home and informed her cousin that she is going out with Rohit. After walking for four-five kilometers, Rohit met her and then he took her over his bike to the house of his relative. On 30th October, 2020 they participated in a marriage where the victim stayed with him where he indulged in sexual intercourse with her. On 31st October, 2020 when Rohit received a phone call from his mother then he dropped her back.”

While dwelling on the multiple relevant case laws, it is then pointed out in para 8 that, “In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, (Para 30), a Constitutional bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18), a three-member bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given facts situations. The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situation. In State of Rajasthan, Jaipur v. Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, (Para 16), Supreme Court in Para 16, held that the delicate light of the law favours release unless countered by the negative criteria necessitating that course. In Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.”

Needless to say, it is then also clarified in para 9 that, “Pre-trial incarceration needs justification depending upon the offence’s heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State.”

Most crucially, while justifying bail to the petitioner, it is then enunciated in para 10 that, “The conduct of the victim clearly points out that she had initially gone with the petitioner up to Primary School and after having coitus with him did not reveal the fact to anyone and despite that after two-three weeks of her own voluntarily accompanied him. Although, she could not have consented for sexual intercourse as well as leaving custody of her custodian but for deciding the bail, her conduct is sufficient to grant bail to the petitioner.”

Furthermore, it is then pointed out in para 11 that, “An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. Without commenting on the merits of the case, the stage of the investigation and the period of incarceration already undergone would make out a case for bail.”

For the sake of clarification, it is then also clarified in para 12 that, “The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses and the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions and stringent conditions.”

From the aforesaid discussion, one thing is clear: Himachal Pradesh High Court in this notable case has made it absolutely clear that minor’s consent for sexual intercourse relevant for deciding bail application of rape accused. Justice Anoop Chitkara who authored this judgment has explained the reasons behind this conclusion. He also imposed strict conditions so that the rape accused does not flee away anywhere and cooperate in the investigation fully! Very rightly so!

Sanjeev Sirohi