Delhi court grants POCSO accused bail after notice not served to him, ‘warns' police to be careful in future
'As per this reply, the notice u/s 35(3) BNSS was served to the father of the accused. The considerable fact is that notice is required to be served to the accused, and if the accused is not traceable, then it would be served to any of his family members. In the present matter, there is no such fact on record that the accused was not traceable…,' said Additional Sessions Judge Amit Sahrawat of Rohini Court in his order dated May 24.
Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita states that a 'police officer shall, in all cases where the arrest of a person is not required under sub-section (1) issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.'
The prosecution, which was represented by Special Public Prosecutor Vineet Dahiya, submitted before the court that they had arrested the accused because he didn't have a place to stay in Delhi, and he didn't cooperate in the investigation. They also argued that he could threaten the victim.
'Regarding the grounds of arrest, it is observed that the father of the accused was traceable… The accused could appear for investigation on same day of serving notice, and thus there is no merit in the ground that there was no proper place or address of the accused,' the court said 'warning' the investigating officer, station house officer, and assistant commissioner of police 'to be careful in future'.
'As far as it is concerned that the accused was not disclosing facts about the incident, then it is the fundamental right of the accused to remain silent as per Article 20 of the Indian Constitution,' the court observed.
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It traced the girl's struggles while tackling the legal system for getting her husband released. Its preliminary report revealed that the legal battle had resulted in the family suffering emotionally and financially. The final report was a damning account of the implementation of the POCSO Act—from failure of child protection committees at the village level, to the lack of provision for free legal aid and sufficient counsellors from both genders in schools and welfare homes. It also highlighted the stigmatisation of girls in similar situations, and the lack of awareness and sensitisation among family members as well as public officials. Raha said that while the SC's judgment refrained from going as far as saying that the POCSO Act should be revised, it definitely drew attention to the plight of the victim. 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Also Read: Opening pant zip, holding child's hand not sexual assault under POCSO, says Bombay HC The conflict in courts Several high courts have in the past asserted that the POCSO Act has not been enacted for consensual adolescent relationships and been proactive in quashing such cases. For instance, back in 2021, the Madras High Court observed that the Act was never intended to cover cases where adolescents or teenagers are involved in romantic relationships, and suggested that the law be amended to exclude such cases. In 2023, it even directed the police to examine all pending cases involving minors, and asked them to check how many fell under the category of consensual relationship. In 2023, the Allahabad High Court granted bail to a man under the POCSO Act, observing that the law wasn't intended for romantic relationships between teenagers. More recently, the Delhi High Court this year made a similar observation, calling for 'a compassionate approach that prioritises understanding over punishment in cases involving adolescent love'. While under the POCSO Act a person below 18 years of age is termed a child, Raha asserts that developmentally, 'adolescent' is a distinct category. 'Adolescence is a very distinct phase of life, and there is the entire argument that you are looking at something that is developmentally normal, and you are trying to criminalise that behaviour, thinking that it will be a deterrent when, in fact, sexual exploration is normal at that age,' she told ThePrint. 'The question is not whether adolescents also deserve protection. They do, but when that protection ends up eroding their rights and their dignity, the question one is asking is whether law should have room for that nuance of recognising that they have different capacities, different abilities,' she explained. 'Criminalising romance' Internationally, the age of consent in most countries is 16 years, while in India it is 18 years. The age of consent here was increased from 16 to 18 years when the POCSO Act was brought in. In its submissions filed Wednesday in response to a 2012 public interest litigation calling for proactive measures after the Delhi gangrape incident, the Centre has objected to any change in the statutory age of consent fixed at 18 years. 'Any departure from this standard, even in the name of reform or adolescent autonomy, would amount to rolling back decades of progress in child protection law, and undermine the deterrent character of statutes like the POCSO Act and the BNS (Bharatiya Nyaya Sanhita),' the Centre's response, seen by ThePrint, states. However, the petitioner in the case, Delhi-based advocate Nipun Saxena, told ThePrint: 'There are multiple cases being registered under the POCSO Act, not by the girl's themselves, but at the instance of their parents and family members.' 'The stand of the Union is that if the age of consent is lowered, it would be an impetus for younger people to marry, and it would lead to an uptick in child marriages. But this argument is inherently fallacious, because this unilateral increase of age (of consent) from 16 to 18 has resulted in more elopement cases than ever, and has resulted in more child marriages, to get out of the rigors of the POCSO Act,' he explained. He further emphasised on the right to express oneself sexually, and asserted the right of every adolescent from 16 to 18 years to express love. 'It criminalises romance in that sense,' he told ThePrint. Amicus curiae in this petition, senior advocate Indira Jaising, told the court earlier this week that when sexual activity between the ages of 16 and 18 is consensual, it cannot be said to be a form of abuse, and so, provisions of the POCSO Act must be read to exclude consensual sexual behaviour between the ages of 16 and 18. She cited data from the National Crime Records Bureau which showed that the number of juveniles (especially those aged 16 to 18) apprehended under the POCSO Act jumped 180 percent between 2017 and 2021. She, therefore, suggested a close-in-age exception, applicable where both parties to the sexual act are adolescents aged between 16 and 18 and the sexual act is consensual. 'Such an exception would preserve the protective intent of the statute while preventing its misuse against adolescent relationships that are not exploitative in nature. The reading down would ensure that voluntary relationships between adolescents are not criminalised under a provision meant to punish abuse,' her submissions, seen by ThePrint, state. A look at exemptions Raha referred to the 'Romeo-Juliet' legal provision in several countries, suggesting carving out an exception in the POCSO Act for those between the ages of 16 and 18 in India. 'If you're above the age of 16 and you are entering into a (sexual) relationship, if you are saying it is consensual, then we trust that, unless that consent is vitiated (on) grounds, such as, it's against your will, there has been use of intoxicating drugs, or coercion, or it is with a person who's in a position of trust or authority, or there has been some exploitation, or trafficking… those are the grounds which will vitiate the consent,' she explained. In foreign countries, such exceptions protect consensual relationships between minors or between a minor and a male adult if the age difference between the two does not cross a certain threshold—intending to keep adolescent consensual relationships out of the ambit of criminalisation. However, Raha believes that looking at only the age difference between the girl and boy, similar to other countries, may not be feasible in India, because age gap is common. Therefore, while advocating for an exception, Raha speaks against a close-in-age exemption, that is, restricting the exception to age difference between the couple in question. 'A Romeo-Juliet clause will not take away the fundamental problem, which is that you are criminalising behaviour that is normal,' she said. She added that when an offence is registered under the POCSO Act, even though it may end in an acquittal, the parties involved are subjected to humiliation and trauma of going through the police investigation, medical examination, and trial. 'Even in this case, if you see, it has taken us seven long years to achieve some conclusion. So, imagine the impact on young people's lives–the developmental impact, health impact, finances, being able to pick up a job, reputation,' she said. According to Raha, criminal law including the POCSO Act is also being viewed as a deterrent against early pregnancies and early marriages. 'But criminal law cannot deter that. The only thing that can deter that is comprehensive education on sexuality through health services. How can the POCSO Act help you ensure that young people are not engaging in sex, or young people are not getting pregnant? You are trying to solve a problem that is genuine using means and methods that are absolutely unrelated,' she told ThePrint. Meanwhile, in the case before the Supreme Court, the committee's report noted that the family of the accused was very poor, and that the couple was living in a temporary shelter enclosed by brick walls and a tarpaulin roof. The accused was working hard as a daily wage labourer, and the young woman had rejoined school, studying in the 10th standard. Court orders noted that the couple was keen on ensuring that their daughter gets educated. The committee said the relationship between the two followed the triangular theory of love, according to which intimacy, passion and commitment are key for love. While initially passion and intimacy may have taken centre-stage for the couple, the committee found that the young woman was now 'deeply committed' to the accused in the case. (Edited by Nida Fatima Siddiqui) Also Read: When there's a predator in the family — why punishing child incest under POCSO is a whole other battle
