- The Himachal Pradesh High Court has denied bail to a nineteen-year-old boy accused of sexually assaulting a thirteen-year-old girl. While dismissing, the Bench stated that the accused did not have the right and liberty to do so just because the girl sent him a friend request on a social networking site.
- The single-judge bench of Justice Anoop Chitkara also held that people often do not reveal their correct age on such platforms and use social media as a source of entertainment and knowledge. This does not mean that they want to be stalked or exploited sexually and mentally.
- The petition was also dismissed on the grounds that the accused did not present a case for bail.
The accused took the minor girl to a hotel where he established a sexual relationship with her. For this, he justified that the girl had sent him a friend request on Facebook, and he had by mistake believed that the girl was above eighteen years of age since the account was in her name.
The accused also said that he had had consensual sex with the victim.
The explanation and observation that mere sending of a friend request does not amount to an invitation for a sexual relationship were much needed. In December 2020, an eighteen-year-old boy was detained as he tried to kidnap a fifteen-year-old girl. Both were friends on Facebook, and the boy tried to persuade her into marriage.
Such cases prove how people assume that if a person has sent them a friend request on any social networking site, then that person wants to establish a sexual relationship with them.
Before the Protection of Children from Sexual Offences Bill was passed in 2012, Indian law did not differentiate between sexual offenses against adults or children. In the same bill, it was recommended that the age of consent should be increased to eighteen years of age. IPC provided that this age shall be 16 years.
Therefore, because the accused engaged in a sexual relationship with the victim (below eighteen years of age), it was considered to be statutory rape.
The same has been held by the Supreme Court in not only this case but in many other cases. For example in the case of the State of Madhya Pradesh vs. Balu, SC held that consent given by a minor cannot be considered as valid consent in the eyes of law.
Section 375(6) of the Indian Penal Code mentions that a man is said to commit rape- with or without her consent when she is under sixteen years of age.
The incident also raises certain questions, which were not addressed by the Court. The first concern is that how did the two land up in a hotel and why the hotel owner allowed two teenagers without checking their age. If the hotel owner did check their age, did the two have fake IDs?
These questions raise the issue of security.
OBSERVATIONS BY COURT
The first observation made by the Court was that the argument made by the petitioner is meaningless since the guidelines of Facebook do not mention that the user has to be at least eighteen years of age.
Then, it was stated that the consent of a minor girl cannot be taken into account. Such has been mentioned in the Indian Penal Code, 1860, and the Protection of Children from Sexual Offences Act, 2012.
The Court also referred to a report in Social Media for Youth and Civil Engagement in India, which revealed that almost 190 million users of Facebook are between ages 15 to 29.
The case of Ragunath Ramnath Zolekar vs. the State of Maharashtra was also referred by the single judge bench of Himachal Pradesh High Court. In this case, the Bombay High Court held that mistake of age cannot be used as a defense. It also rejected the argument that mens rea was a part of Section 375 and 376 IPC and, provided that the victim’s age is below eighteen was proved, penal liability for the actions will not be there.
In this case, the High Court of Bombay also observed that if the mistake of age is read as if present in the sixth clause of Section 376 of IPC, then it will amount to playing around with the scheme of the statute.
Therefore, after making all these observations the petition was dismissed by the Himachal Pradesh High Court because no case was made out for bail by the accused.
CONCLUSION AND RECOMMENDATIONS
The above case highlights that there is a need to make social networking sites more secure and private. Users should only send a request to people they know, and even if they are sending a friend request only to increase their network circle, then the communication must be monitored.
Also, even though the consent of the minor is not valid, there still needs to be a closer study of the messages that were exchanged between the accused and the prosecutrix. This is because it will offer a detailed explanation of the case.
There is also a need to study and revise the POCSO Act. This is because it does not differentiate between sexual acts between consensual minors and sexual acts between minors and adults. Merely stating that establishment of sexual relationship with a minor (below eighteen years of age) is regressive and is evident of the fact that the law has an outdated moral viewpoint.
Therefore, it is clear there is a difference of opinion when it comes to a discussion over the age of consent. People who support that eighteen years should be the ‘consenting age’ claim that this would focus on only the conduct of the accused and not of the victim. Whereas, if this is not done then the victim will have to prove that she did not give free consent.
People who oppose the same state that this provision can be used by the police to harass young couples and parents will also use the law to control their children’s behavior.
Click here to read the original copy of the judgment