On April 26, 2023 the Bombay high court, in bail application no. 997/2022, made a heavily loaded observation while granting bail to Imran Iqbal Shaikh – that the Protection of Children from Sexual Offences (POCSO) Act was not intended to punish minors in consensual relationships and brand them as criminals. This comment by Justice Anuja Prabhudessai was widely reported in the media.
The facts of the case, as per the FIR, are that the 17-year-old victim left her house on December 27, 2020. The victim’s mother (complainant) filed a case of kidnapping at the Dindoshi Police Station. The victim’s statement reveals that after she left the house, she stayed with her friend for two days. Thereafter during the day she roamed on the streets and at night she slept in a rickshaw. On December 29, 2020 while she was sleeping in the rickshaw, the accused called her to the terrace of an SRA building near Kodarmal Masjid, demanded money from her and then had forcible sexual relations with her. Again on January 7, 2021 the accused called her to the terrace of a building near Sanjeevani Hospital and had sexual relations with her. On January 12, 2021, the victim was walking near her college. Her teachers who saw her called her parents. Later on February 18, 2021 a case under the POCSO Act was recorded.
On June 14, 2021, the sessions court, Mumbai rejected the accused’s bail application, observing that the accused was a habitual offender. (In 2018, a case under the POCSO Act was recorded against the accused. In that case the accused had on multiple occasions raped a 15-year-old girl who was working in a bangle factory. The crime took place at his home and also at a lodge. In December 2018, the accused was granted bail by the session court, Mumbai on account of various lapses by the police – medical report not legible, reason for delay in filing FIR not mentioned, registers of the lodge not collected etc.
On January 19, 2022, the sessions court, Mumbai again rejected the second bail application of the accused, stating he is habituated to committing this crime and had committed the same crime within two years. The accused may repeat the crime with other minors, threaten the victim and her family and may also distribute objectionable photographs. Since the accused had no permanent place of residence, there was an additional apprehension that he may flee the city.
On October 15, 2022, the sessions court, Mumbai rejected the discharge/bail application of the accused for the third time. It is interesting to note that on this occasion, the accused came armed with an affidavit by the victim stating that the relationship was consensual and that she wishes to take the case back. In spite of this, the sessions court, Mumbai deemed it fit to reject the bail application of the accused.
Also read: To Tackle Rising Cases of Child Sex Abuse, the NCRB Must Address Gaps in POCSO Data
One then wonders what prompted the Bombay high court to grant bail to the accused. especially since the sessions court had on three occasions by two different judges rejected his bail application? And more importantly, why did the high court charged with the responsibility of protecting all minors make this highly inappropriate comment, given the circumstance of the said case?
Our experience while working at Majlis, an organisation that provides legal and social support to victims of sexual violence for over 10 years now, has given us an in depth understanding about what goes on behind-the-scenes in rape trials. Our close interactions with child sexual abuse victims reveals that they face multiple marginalisations and grave pressure from the accused and his high-profile lawyers, because of which most victims are forced to turn hostile.
Did the Bombay high court consider why in a consensual relationship, the minor victim was roaming the streets by day and sleeping in a rickshaw at night for almost two weeks?
Did the court consider that the accused is a repeat offender, and what could be the repercussions of granting him bail? As ‘parens patriae’ did the high court consider the best interest of the child victim?
The accused by his own admission was 21 years of age in 2018. How then can he be only 22 years of age in 2021, when the second POCSO case was filed? The fact is that the accused is at least 24 years of age and a repeat offender. Can he be termed as a minor as the high court observation suggests?
What was the pressure put on the victim and her mother that she gave an affidavit to the accused stating she wanted to withdraw the case?
While bail is a right of the accused and we absolutely support granting of bail in appropriate cases, it is the arbitrary comments by the court that are of deep concern. What is the message that the high court is sending to the lower courts and the police? It is a dangerous trend to look at all sexual violence cases, especially where the victims are minors, as consensual, because rarely are these cases about love and romance – there is a whole lot of abuse thrown in.
Advocate Audrey Dmello is the director of Majlis, a legal centre for women and children.
