New Delhi: The Delhi High Court has held that consent is irrelevant for prosecution under the Protection of Children from Sexual Offences (POCSO) Act, as the age of the victim is the decisive factor.
Justice Sanjeev Narula held this while denying bail to a 26-year-old man accused of sexually assaulting his 15-year-old minor neighbour in 2024 and administering her medicines to terminate her pregnancy.
Victim was 18 years old and our relationship was consensual, accused argued before High Court
The accused, who was married man with a daughter, argued discrepancy in the age of the victim at the time of the incident and relied on a statement of the victim in which she said that she was 18-year-old. The accused further contended that the victim was 18 years old and that their relationship was consensual.
Alleged consensual nature of relationship prima facie irrelevant: High Court
“This plea of consensual relationship is legally immaterial. Under the POCSO Act, the age of the victim is the decisive factor, and if the victim is below 18 years of age, the law presumes that she is incapable of giving valid consent. The alleged consensual nature of the relationship is, therefore, prima facie irrelevant for the purpose of prosecution under the POCSO Act,” Justice Narula said.
Regarding the discrepancy in the age of the victim, the High Court said the statement, wherein the victim herself purportedly stated that she was 18 years old, will have to be tested at trial once the parties have led evidence and the court at this stage cannot disregard the school records, which categorically mention the date of birth of the victim showing minor.
School admission register is legally accepted document for determining age under JJ Act: High Court
“The school admission register is the legally accepted document for determining age under Section 94 of the JJ (Juvenile Justice (Care and Protection of Children) Act read with Rule 12 of the JJ Rules, 2007, unless rebutted by cogent evidence. In the absence of any conclusive proof to contradict the school records, the mere oral assertion of the Prosecutrix during trial cannot be given overriding weight at this stage,” the High Court said.
The High Court further noted that at the time of the alleged incident, the accused was 26 years old, a married man with a daughter, who allegedly engaged in physical relations with the victim who would be 15 years and 7 months old as per her date of birth and who was also his neighbour.
Nature of offence, age disparity and ongoing trial are factors that cannot be overlooked: High Court
“The nature of the offence, the age disparity between the parties, and the fact that the trial is still ongoing with key public witnesses yet to be examined are factors that cannot be overlooked. Thus, considering the gravity of the offence, the potential for influencing the witness, and the stage of the trial proceedings, the Court is not inclined to grant bail to the applicant (accused),” the High Court said.
