Consent Of Minor For Physical Relationship Is Immaterial: Allahabad HC Denies Bail In Child Trafficking Case

The Allahabad High Court in its judgment dated May 5, 2023 rejected bail application of an accused charged with offences under the POCSO Act, 2012, Immoral Traffic (Prevention) Act, 1956 and Penal Code, 1860.

The victim in the present case was a minor girl aged about 14 to 15 years and was working as a scavenger. As per the FIR lodged by the father of the victim, she was missing since 29.09.2020. Statements before the Police and Magistrate were recorded wherein the victim narrated her entire ordeal of repeated sexual assault and how she was sold from one accused to another. Case Crime No. 438 of 2020 under Sections 366, 120-B, 176, 372, 373, 376 AB, IPC, Sections ¾ Of POCSO Act, 2012 and Section 5 of Immoral Traffic (Prevention) Act, 1956 was registered against the applicant-accused.

The counsel for the applicant submitted that the victim was not “purchased” as alleged, rather two of them lived together as husband and wife and even in the statement no allegations were made of cruelty or assault as such.

The single judge bench of Justice Saurabh Shyam Shamshery, while rejecting the bail application, observed, “The applicant and co-accused have treated a minor girl like a vegetable sold in an open market and not only entered a marriage of convenience but made physical relationship with her with or without consent which was illegal as the settled position of law is that consent, if any, of a minor girl for physical relationship is immaterial...not only her body was ravished many times by number of persons but she has suffered mental trauma also. This act of selling the human being like a commodity was nothing but a dark black spot on society and accused persons including the applicant are not only accused of the offence committed against the victim but they are accused to the entire society as well."

On the menace of child trafficking, Court added, ”Child Trafficking is a crime against humanity and society, therefore, each citizen of the country has to give some effort in order to check and to stop such trafficking and for that citizens have to keep their eyes open and in case of any suspected movement of children or otherwise is found, they have to report immediately to the concerned police station or NGO”

Chairperson, Child Welfare Committee, Shahjahanpur was also summoned in order to verify whether the committee had discharged all responsibilities towards the victim diligently or not.

Reference was made in this regard to the decision in Rajendra Agarwal v. State of UP, Bail Application no. 833 of 2023, wherein it was emphasized that Child Welfare Committees have a greater responsibility in dealing with cases of minor victim girl, who has suffered mental and physical trauma of repeated assault. "Effect of act/offence of rape is not momentary, rather, it gets embedded over mind, heart, body and soul of the victim and the duty of CWCs in such cases is to erase such memories by well-trained counsellors who have experience of treating such victims under proper guidance and look after", Para 29 of the decision adds.

Case Title: Moharpal Maurya v. State of U.P. | CRIMINAL MISC. BAIL APPLICATION No. 6693 of 2023