CRUX:
Mr. Rahul @ Nayaz Pasha v. State of Karnataka CRIMINAL PETITION NO.1173 OF 2021-In the present case, Karnataka High Court observed that personal law cannot override POCSO Act.
DATE OF JUDGMENT:
16/06/2021
JUDGE:
Hon’ble Mr. Justice K.Natarajan
PARTIES:
Mr. Rahul @ Nayaz Pasha (Petitioner)
State of Karnataka(Respondent)
SUMMARY
The Karnataka high court decided that, while Mohammedan law permits second marriages, personal law cannot override specific legislation such as the Protection of Children from Sexual Offences (POCSO) Act, the Child Marriage Restraint Act, and the country's General Penal Code.
Background Facts
According to the prosecution, the victim's mother filed a complaint on October 5, 2020, saying that petitioner-accused stole her daughter, the victim girl, who was about 15 years old at the time. Her daughter was allegedly seated by the phone on September 27, 2020 at approximately 11 p.m. She was last seen in the house on September 28, 2020.
On October 3, 2020, at approximately 2:00 p.m., the victim girl returned wailing. When her mother questioned, the victim told her that on September 27, 2020, while she was seated with her phone, the petitioner forcibly abducted her and took her to his relative's residence, where she was held for three days and not allowed to speak with anybody.
Later, in the middle of the night, the petitioner escorted her to a deserted location and secured her signature. Following that, on October 1, 2020, about 12 p.m., the accused's wife removed the victim and left her in a house where the petitioner is accused of sexually assaulting her. The victim fled from the petitioner's custody on October 3, 2020, about 5.00 p.m.
The petitioner was arrested under Sections 363, 342, 114, 506, 376 read with Section 34 of the Indian Penal Code, Sections 4, 6, 17, 18 of the Protection of Children from Sexual Offences Act, and Sections 9 and 10 of the Child Marriage Restraint Act after the complaint was filed. The accused appealed to the high court after his bail plea was denied by the sessions court.
High Court’s Observation and Order
"Merely because the parties are Mohammedan does not mean that the petitioner-accused No.1 has right to marry a juvenile girl by tempting and abducting her," Justice K Natarajan stated in denying the accused's bail motion. The victim minor girl's agreement or will is irrelevant, and even if she voluntarily travelled with the accused, this constitutes abduction or kidnapping under Section 363 of the IPC. The perpetrator not only kidnapped the victim underage girl, who was around 15 years old at the time, but he also married her, violating Sections 9 and 10 of the Child Marriage Restraint Act. He has also sexually abused her, which is punishable under Sections 4 and 6 of the POCSO Act.
The court also dismissed the victim's no-objection to the accused's being granted bail. According to the court, "The victim's understanding capacity cannot be compared to that of an adult who has reached the age of 18. As a result, even if she consented to abduction, marriage, or sexual intercourse while she was a minor, her permission is irrelevant."
The court also took notice of respondent No. 2, the complainant, who came through an advocate and provided an affidavit from the victim claiming that the victim married the petitioner-accused and now lives with him. According to the court, "that cannot be construed as her permission to issue bail. Even if the victim replied 'no objection,' it cannot be regarded a valid 'no objection,' as it is against the law because she is a minor girl."
"The victim has made her statement under Section 164 of the Cr.P.C., she has unequivocally claimed that they threatened her to marry the accused and took her to his first wife's residence (accused No.2), where the accused had sexual intercourse," the judge added. The most significant section of the Criminal Procedure Code (Cr.P.C.) to consider when examining the accused's bail petition is Section 164. Even if the underage girl expresses "no objection," granting bail to the accused in a horrible crime such as rape on a juvenile girl is nothing more than granting the offender permission to perpetrate similar crimes, diluting the Special Act adopted by the Parliament to protect children from sexual offences.
The court further stated "It will convey the wrong message to the Society, aside from the provisions of Section 375 of the IPC. As a result, in the public interest and with the goal of reducing such types of sexual offences, the Court should disregard a little girl's 'no objection' to granting bail to the accused, and the Court should deal with such a horrible crime with a heavy hand."
Conclusion
Consent of a prosecutrix under the age of 16 cannot be treated as a mitigating circumstance – If consent of a minor is treated as a mitigating circumstance in a heinous and abhorrent crime of sexual assault, it may have disastrous consequences, especially in light of the Protection of Children from Sexual Offenses Act, 2012. The court determined that the petitioner-accused is not entitled to bail and that the criminal petition should be dismissed based on the principle established by the Honble Supreme Court and the facts and circumstances.
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