In a recent development, a single-judge bench at Nagpur, comprising Justice Urmila Joshi-Phalke of the Bombay High Court, granted bail to a 26-year-old man booked for raping a 13-year-old child in the case of Nitin Damodar Dhaberao v. State of Maharashtra. The accused had approached the High Court seeking relief after an FIR was filed by the victim’s father under Sections 363, 376, 376(2)(n), 376(3) read with Section 34 of the Indian Penal Code and Sections 4, 6, and 17 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO”).

Justice Urmila noted that although the girl in this case is a minor, she left her parents’ house on her own, as per her statement to the police. Furthermore, the minor admitted to being in a “love relationship” with the accused. The Court also considered the fact that she stayed with the accused at various places without raising any grievances about being forcefully taken away. Thus, it became apparent – that out of a love affair, she willingly joined the company of the applicant, who is also of a ‘tender age’ (26 years), and they came together as a result of this love affair. 

A Breach in the Spirit of POCSO

The Protection of Children from Sexual Offences Act, 2012 is an Indian law enacted in 2012 to address and combat sexual offences against children- including sexual assault, sexual harassment, and pornography involving minors. The law fundamentally aims to provide a comprehensive legal framework for the protection of children from sexual exploitation and abuse. The spirit of the Act is inherently rooted in the commitment to safeguard the well-being and rights of children. Furthermore, it actively seeks to create a protective environment for children by addressing and preventing sexual offences against them. Additionally, the Act expeditious trials to ensure timely justice for victims and has introduced child-friendly legal procedures to mitigate trauma during the trial process.

However, Justice Urmila’s order granting bail to the accused more ostensibly seems to be a violation of the very spirit of the POCSO Act. The rationale behind the court order for bail in the instant case was that the alleged sexual relationship appears to be “out of the attraction between the two young persons and it is not the case that the applicant has subjected the victim to a sexual assault out of lust”. The point worth highlighting is that the order fails to acknowledge that neither the consent of the minor nor the nature of the relationship between the individuals is relevant – when dealing with cases, aligned with the specific facts charged under POCSO.

Secondly, the presumption of a minor’s incapability to consent should not have been ignored in the instant case, especially in light of the fact that the minor was only 13 years of age at the time of the incident’s occurrence. Further, as has been mentioned earlier, the spirit of the act essentially aims to protect the well-being of the children and to create a healthy environment by addressing and preventing sexual offences against them. 

Regrettably, in the instant case, the decision to grant bail to the accused represents a fundamental breach of the values inherent in the spirit of the Act. This proves to not only be disconcerting within the specific circumstances of the case but also raises broader concerns regarding the effective dispensation of justice in matters involving children across the country.

J. Urmila’s Order: Flaws in the Rationale

The accused is charged under Sections 363, 376, 376(2)(n), 376(3) read with Section 34 of the IPC and Sections 4, 6, and 17 of POCSO, primarily involving the offence of rape (under Section 376), which is fundamentally non-bailable in nature. Hence, the decision to grant bail to the accused in such cases rests entirely with the court of law rather than being a matter of right. Given the sensitivity of cases like the one at hand arises from the potential for the accused to tamper with evidence once out of custody. Therefore, the decision to grant bail should have been made cautiously, taking into account the potential impact on the integrity of the trial process.

Moreover, Justice Urmila’s declaration of the accused’s age to be ‘tender age’ is absurd and problematic, considering that the accused was a 26-year-old adult at the time of the offence. 

If understood correctly, at that age, any ordinary citizen would have exercised their voting right twice at the very minimum. Ironically, the court conveniently overlooked the undeniable ‘tender age’ of the 13-year-old victim while deciding on the bail petition. At the age of 13, an individual is almost always more susceptible to manipulation and prone to making uninformed decisions, leading to undesirable consequences. This discrepancy in life experiences raises concerns about the court’s assessment, highlighting a lack of nuanced consideration for the vulnerable position of the young victim before granting the order.

To this end, it must be noted that the spirit of POCSO, aimed at mitigating traumatic experiences during trial processes, extends not only to the minor but also to their family. Therefore, besides the inherent rationalistic flaws in the order, the act of granting bail in such cases contradicts the very spirit of the legislation.

Concluding Remarks

The Bombay High Court’s order of the Nagpur Bench by Justice Urmila, although purportedly aimed at supporting the notion of young love, has failed miserably and undeniably. Young love might be considered between two intelligible minors or in relationships where at least the sole minor is intelligent enough to understand and make informed decisions for themselves. However, in these cases, the consent of the minor is immaterial, not only due to the minor being incapable of consenting just by virtue of being underage but also because this piece of legislation is intended to safeguard and protect the well-being of children. Therefore, it is entirely at the discretion of the court to determine what truly achieves this. And no relationship between a 26-year-old and a 13-year-old should or can be deemed natural or beneficial for the minor by any stretch of imagination. This order is going to have ramifications and could potentially be exploited in the future, encouraging pedophilic relationships under the pretext of ‘love’ rather than ‘lust.’