The Supreme Court on 1st, March 2021 asked a 23-year-old man who stands accused of raping a minor girl when she was aged around 16 years whether he will marry her.
By: Khushi Yadav, FIMT College, GGSIP University.
A three-judge bench headed by Chief Justice of India SA Bobde, Justice Bopanna, and Justice Ramasubramanian dismissed the Special Leave Petition giving the accused liberty to seek regular bail and the bench also granted the petitioner protection from arrest for four weeks.
The CJI while hearing a special leave petition by the man who is now a government servant in Maharashtra, against an order of the Bombay HC (Aurangabad Bench) which canceled his anticipatory bail.
CJI Bobde asked the petitioner’s lawyer when the matter was taken, “Will you marry her?”
The lawyer pleaded that his client was a government servant who will be suspended from service if arrested in the case. The Petitioner presently aged 23 years was accused of raping a 16-year-old girl during the years 2014-15.
The CJI replied, “You should have thought before seducing and raping the young girl, you know, you are a government servant. We are not forcing you to marry. Let us know if you will. Otherwise, you will say we are forcing you to marry.”
When the case was retaken after other matters, a lawyer informed that marriage was not possible as a petitioner had married someone else. Also, the lawyer added petitioner initially wanted to marry her but she refused.
The FIR was lodged against the petitioner, in 2019, under Sections 376, 417, and 506 of the Indian Penal Code, 1860 and under Sections 4 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 by the girl.
The Applicant alleged that she was studying in ninth standard in the years 2014-15 when the respondent started stalking her. He was her distant relative and used to keep coming to her house. She further alleged that during that period he clandestinely entered into the house from a backside door and committed rape on her. He also threatened her of consequences if the incident was disclosed. She further alleged that even thereafter he continuously stalked her and threatened her. She alleges that he used to come frequently to her house and used to have sexual intercourse. She also stated that sometimes he used contraceptives since and she was afraid, she never disclosed this fact to anybody.
She further alleges that when she, along with a Social worker and her mother, went to Lodge a report with the Police Station of respondent 2, who persuaded them not to launch the complaint by promising that she would accept her as her daughter-in-law.
The Sessions Court granted the accused anticipatory bail then the girl approached the Bombay High Court seeking its cancellation.
The Bombay High Court observed, “One can easily conclude that going by the allegations responded number two has sexually exploited the applicant for a sufficiently long period since she was around 16 years of age the papers of Investigation would further corroborate the applicant’s version about the execution of writing on a stamp paper of rupees 500 responder number two and is Family seem to be so influential that they could get executed this writing from the applicant and her widowed mother the very fact that they could get such writing executed is indicative and it’s sufficient to infer the respondent 2 had indulged in sex with the applicant. Even when she was merely 16 years of. Pertinently, writing also bears his signature and signature of his mother.”
The High Court also said that “The impugned order passed by the Learned Additional Sessions Judge is indeed atrocious. The only reason that can be found in the impugned order is the approach of the Learned judge from such reasoning clearly shows his utter lack of sensitivity in such serious matters in spite of having noted that the applicant was still a minor. When responded number two had sexually exploited her and in spite of observing that a consent was immaterial. He has concluded that it was a consensual relation. Astonishingly, Merely because you had mentioned in the FIR about the use of contraceptives. The judge has jumped to the conclusion that she was having sufficient maturity. The height has committed by the Learned Additional Sessions Judge even to record an observation that there is possibility of false implication of respondent no. 2. Such an approach is a clear indication of the Learned judge utterly lacks competence. It is indeed a matter which deserves a serious consideration. The Learned Judge has clearly deprived the investigating officer to of an opportunity to custodial interrogations for number two by granting anticipatory bail merely for asking.”
The High Court went further to say that, “This is a case where it can easily be concluded that the learn additional Sessions Judge has not exercised the discretion vested in him judiciously. Order being clearly perverse, arbitrary, and capricious the application deserves to be allowed. And the impact the order granting anticipatory bail to respond and number two is liable to be quashed and set aside.”