Consent of child Immaterial in child sexual offences: Kerala Court

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The Court has pointed out that in sexual offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO), consent becomes immaterial if the child is below 18 years of age

A Kerala Court in a recent order observed that consent is immaterial in cases of child sexual offences. Court was hearing a case concerning 22 year old youth who is accused of raping a 14 year old girl.

The court said that since the age of the girl is below 18 years, whether or not she gave consent for indulging in sexual intercourse with her is irrelevant. In this case, even though the minor girl had no grievance against the accused and told court of engaging in sexual intercourse with him at her own will, the court did not consider it fit to quash the case against accused.

The allegation of the prosecution was that the accused, Abhijit belonged to the Christian community and the minor girl, to the Pulaya community which is included in Scheduled caste. They fell in love and the accused engaged in sexual intercourse at his residence. This was repeated between January 4 and January 22, 2023, whereby he took the minor on a motorcycle on various occasions. He engaged in sexual intercourse on four other occasions in February. On February 27, he took the minor to Aluva Manappuram and they stayed there for two days.

Following this, a case was registered on the same day by the father of the victim girl that his daughter had gone missing. After she was located, her statement under section 164 Cr.P.C. (before the magistrate) was recorded where she stated that she had no grievance against the accused and had voluntarily engaged in sexual intercourse with the accused.

An Investigation was conducted for offences under Ss. 363, 370A(i), 376(2)(n), 376(3) of the IPC, 1860 and Ss. 4(2) r/w 3, 5,(I) r/w S. 6 of the POCSO Act, 2012 and S. 3(2) of SC/ST (Prevention of Atrocities) Act.

However, the Additional District Judge K. Soman at Ernakulam observed, “Since the victim is a child u/s. 2(d) of the Protection of Children from Sexual Offences Act, 2012 as her age is below 18 years consent is immaterial and sexual intercourse with a minor is an offence of rape and aggravated penetrative sexual assault.”

While the court was cognisant of the above, it also took note of the length of detention for which the accused had been in judicial custody, and stage of investigation in the present case.

The accused, who was in the docket for offences under the Indian Penal Code, Protection of Children from Sexual Offences Act, 2012 and SC/ST (Prevention of Atrocities) Act was granted bail upon the following conditions, after he filed a bail plea under section 439 of the criminal procedure code:

- Petitioner shall pay bond of Rs. 1,00,000/- with two solvent sureties each for the like sum
- Petitioner is to report before the Investigating authority between 10.00-11.00 am every Monday, till the charge sheet is filed.

- Petitioner shall not influence or threaten victim or any witness involved in the case.

- Petitioner shall surrender his passport and if he does not possess a passport, an affidavit will be filed, attested by the jail authorities.

- Petitioner shall not commit similar offences during the period of bail.

Case Title: Abhijit Raj v. State of Kerala | CMP No. 182/2023