On Thursday, 4th May 2023, the Bombay High Court granted bail to 25-year-old Imran Shaikh who is accused of raping a minor girl in 2020. The court noted that the testimony of the mother of the victim apparently indicated that the relationship was consensual and observed that the POCSO act cannot be used to punish minors in a romantic relationship. The court has also imposed conditions on the accused while granting him bail.
Imran Shaikh, who was 22 years of age at the time of the alleged crime, was charged with kidnapping and raping a juvenile in violation of sections 363, 376 of the IPC and section 4 of the POCSO Act. Justice Anuja Prabhudessai granted bail to him after he moved the court seeking bail. The applicant was represented by attorneys Sunny Aaron Waskar, Harshada Morey, and Shamish Marwadi. The State was represented by SV Gavand, an additional public prosecutor. The victim was represented by advocate Veerdhawal Deshmukh, who was appointed by the Court.
While the court granted bail because Shaikh is in prison as an undertrial for a long time, Justice Anuja Prabhudessai also noted that the relationship was consensual, and the POCSO was not made to punish minors in such cases.
The court said, “The Applicant was also a young boy of 22 years of age at the time of the incident. The statement of the first informant, prima facie indicates that the relationship was consensual. It needs to be noted that the POCSO Act has been enacted to protect children from offences of sexual assault, sexual harassment etc. and contains stringent penal provisions to safeguard the interest and the well-being of the children. The object is certainly not to punish minors in a romantic or consensual relationship and brand them as criminals.”
The POCSO Act does not recognise consensual sexual relations with minors and considers such cases as rape. Moreover, the accused Imran Shaikh is not a minor and he was an adult when the alleged crime happened, and therefore it is not clear what the judgement means by saying that “the object is certainly not to punish minors in a romantic or consensual relationship and brand them as criminals.” In this case, only the victim girl is a minor and she is not being punished, only the adult man is facing the case.
Imran Shaikh was arrested by the Mumbai Police for allegedly kidnapping and raping a minor girl. The young girl, however, claimed that the relationship was consensual and that she had left her parents’ home on her own in December 2020, not been abducted. However, the applicant was arrested in February 2021 and has been imprisoned ever since the mother of the victim girl accused him of kidnapping and rape.
The court also said while granting the bail, “The Applicant is in custody since February 17, 2021. The trial has not yet commenced and considering the large pendency, the trial is not likely to commence in the immediate future. Detaining him further will bring him into association with hardened criminals which will also be detrimental to his interest.”
The applicant was released by the court on various conditions, including that he would not obstruct the complainant or the other witnesses, tamper with the evidence, or make any attempt to influence or get in contact with them or anyone else involved in the case.
Following a complaint from the victim’s mother, an FIR was filed with the Dindoshi Police Station in Mumbai for offences punishable under Sections 363, 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The victim had left the residence on December 27, 2020, and had not come back, according to the FIR. Her mother suspected the victim had been abducted by someone. After being located, the girl gave a statement in which she admitted that she had left the home on December 27, 2020, and had spent two to three days with her friends. She was afraid to go home since she had left the house without telling her parents. She maintained that she did not go back home and that she spent the night sleeping in a rickshaw and the day wandering around the area near her house.
According to the FIR, the victim was sleeping in a rickshaw on December 29, 2020, when the accused called her to the terrace of the SRA building next to the Kodarmal Masjid and engaged in an enforced sexual relationship with her. He allegedly had a sexual relationship with her again on January 7, 2021.
The bench stated that the victim was a minor as defined by Section 2(d) of the POCSO Act, and the petitioner was also a young boy at the time of the incident. the court also noted that the statement of the mother of the victim indicated that the relationship between the two was consensual.
