Sending request on facebook not to be presumed as consent for sexual act: Himachal Pradesh High Court

 Hig h C o urt of H.P on 07 02 HCHP 1IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr.MP(M) No. 1121Reserved on: 22nd January 2021.Date of Decision: 04th February 2021.Rajeev ...Petitioner.VersusState of H.P. ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Vacation Judge.Whether approved for reporting 1 YES.For the petitioner:Mr. Manoj Pathak Advocate. For the respondent:Mr. Narender Guleria & Mr. Vikas Rathore Addl.A.Gs. with Mr. Bhupender Thakur Gaurav Sharma& Ms. Divya Sood Dy. A.Gs.THROUGH VIDEO CONFERENCEFIR No.DatedPolice StationSections195 201914.11.2019Theog District Shimla376 363 IPC & 4 of POCSOActAnoop Chitkara Vacation Judge.A boy aged 19 years who is in custody for taking a girl aged around13 years to a hotel where he committed coitus with her has come up before thisCourt seeking regular bail on the ground that because since she had created aFacebook account in her name would make anyone believe her to be aged 18 yearsand more and this is what he also thought about her age.2.Earlier the petitioner had filed a petition under Section 439 CrPC before thisCourt. However vide order dated 27.10.2020 the same was dismissed as withdrawn1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 07 02 HCHP 2with liberty to file afresh. Now he has filed this petition before this Court underSection 439 of the Code of Criminal Procedure 1973to create an account. The same is available on the followinghyperlink: https: www.facebook.com help 570785306433644. Hence thepetitioner s contention that since the victim has a Facebook account she must be of atleast 18 years of age is invalid because any person aged 13 years and above cancreate a Facebook account.8.Even otherwise people join social networking platforms like Facebook Twitter etc. intending to connect with friends and family and to expand the alreadyexisting social network from the comfort of one’s four walls. According to a reporttitled ‘Social Media for Youth and Civil Engagement in India’ published by UNDP India has 290 million registered users of Facebook in all age groups. Out of this 190million users are youth in the age group 15 29 years. Interestingly the millennials inthe age group 15 29 years constitute 66% of total Facebook users although theyconstitute only 27% of the total population. Therefore most of the youth are presentand active on such social media platforms. Hence it is not unusual for youngsters tomake new social connections by sending friend requests. It no way implies thatchildren who create social media accounts do so to search for sexual partners or theyintend to receive such invitations. The use of social media in present times is a norm.People use social media for networking knowledge and entertainment and indeednot to get stalked or be exploited sexually and mentally. Just because the victim senta friend request to the accused does not give him the right and liberty to establishsexual relations with her.9.In the present case the victim is a child in the first year of her teens. The factthat she sent the friend request on Facebook to the accused cannot lead to thepresumption that she did it with intent to allure the accused to establish coitus. Hig h C o urt of H.P on 07 02 HCHP 410.Another argument made by the petitioner s Counsel that the prosecutrix hadmentioned her age as 18 years on her Facebook profile is also immaterial. Noscreenshot or evidence of any kind has been annexed with the petition. Further it isnot uncommon for people to not reveal everything about their age and identity onsocial media as it is a public platform. If a child mentions the wrong age onFacebook it does not become a gospel truth and it certainly does not lead to a primafacie presumption that such person is not a child but a major of 18 years of age orabove. Even if hypothetically for bail the Court believes it to be correct thisargument does not hold much weight because when the petitioner saw the victim inperson he must have gathered that the victim is a child. A girl of 13 years and 3months of age cannot be presumed and believed to have an adult s physicalappearance. Hence the said argument is not acceptable and is subject to theappreciation of evidence led in the trial.11.Thus the petitioner s argument is that the accused believed the victim to be of18 years of age and committed the sexual act with her consent. However since thevictim was under 18 years of age and her consent is immaterial prima facie amountsto statutory rape. The legislature has been clear regarding the said clause and statesthat a person will be held liable if he commits sexual intercourse with a girl less than18 years of age with or without her consent.12.In Ragunath Ramnath Zolekar v State of Maharashtrathe Division Bench of Bombay High Courtvidejudgment dated 04.02.2013 dealt with many issues and mistake of age as a defencewas one of them. In the said case the defence while relying upon Bv.Director of Public Prosecutionsargued that mensrea is a partof Section 375 and 376 IPC and unless and until the knowledge of the accused thatthe prosecutrix being below the age of 16 years is proved the penal liability for thesaid act will not be attracted. However the Hon’ble Bench rejected the said argumentand went onto observe We therefore hold relying on the judgment in case of Bv. Director of Public Prosecutionsthat the phrase “with knowledge that prosecutrix is below 16years of age” cannot be read as if present in clause sixth ofSection 376 of the Indian Penal Code. If any such attempt ismade it shall amount to tinkering with the scheme of statute. Hig h C o urt of H.P on 07 02 HCHP 513.Learned Counsel for the petitioner referred to certain statements and memosfrom the police report prepared under Section 173(2) CrPC. As per the status report on 24th June 2020 the SHO had filed a Police report under Section 173CrPC.Despite that the petitioner did not place the relevant documents of the same on therecord to make out a case for bail. While considering the bail application when thepolice report is yet to be filed the Court may call for the Police file to look into thenature of allegations and evidence collected by the police however once the Policefile report seeking prosecution of the accused and its copy handed over to accused itis not for the Court to call for the record. Thus it is not for the Court to direct theState to produce the police report because the State represents society and the victimnor can base its findings on a document in the Counsel s brief and not on Court s file.It may be unfair to ask the State to hand over the documents that the opposite partywants to show to corroborate its arguments. Such a burden would be on the petitioneronce the accused under Section 207 CrPC receives the copy of the documents filedin the police report under Section 173CrPC.14.Given above in the facts and circumstances peculiar to this case at this stage the petitioner fails to make out a case for bail. The petition is dismissed with libertyto file new if so advised.15.Any observation made hereinabove is neither an expression of opinion on themerits of the case nor shall the trial Court advert to these comments.16.I express my gratitude to my interns Adv Sakshi Attri and Adv ApoorvaMaheshwari for their excellent perspective.The petition is dismissed.(Anoop Chitkara) Vacation Judge.February 04 2021 (mamta). 

Summary: Just because a girl sends a request on Facebook, doesn’t mean that she has given her consent for a sexual act and it can’t be presumed that she must be an adult and not a minor. The judgment in the case of Rajeev vs. State of Himachal Pradesh [Cr.MP(M) No. 113 of 2021] was given while dismissing the bail petition of the petitioner (accused) by the single bench of Hon’ble Justice Anoop Chitkara. In the above-cited case, the petitioner had filed a petition for bail u/s 439 of CrPC. The petitioner (accused) was convicted for offences u/s 366 A &amp; 376 of the Indian Penal Code for doing sexual acts with a 13-year-old minor girl. An FIR was lodged by the victim’s father on 14-11-19, stating that his daughter went missing on 13-11-19. On 15-11-19, police recovered the victim from a hotel in Theog, Himachal Pradesh with the accused who was 19-year-old. The victim and the accused were then being taken to the hospital for medical examination where the reports were evident for sexual acts between both of them. Thus, police filed a report under Section 173(2) CrPC. The petitioner’s counsel had argued that the victim had sent a request to the accused on Facebook and that’s when they became friends. Accused wasn’t aware of the fact that the girl was a minor; he presumed that she must be above 18 years of age because it’s the minimum age required for making an account on Facebook. It was argued that the victim herself disclosed her age to be of above 18 years to the accused and he was a first offender; thus, incarceration before the proof of guilt would cause grave injustice to the petitioner and family. The High Court stated that under IPC and POCSO Act, a child under 18 years of age cannot consent for sex. As such, consent is out of the question in such cases. It was contended that the minimum age required for making an account on Facebook is 13 and not 18, so the grounds of the petitioner does not hold any sense. Hence, the petitioner’s contention that since the victim had a Facebook account, she must be of at least 18 years of age was invalid. High Court further stated that “It no way implies that children who create social media accounts do so to search for sexual partners, or they intend to receive such invitations. Just because the victim sent a friend request to the accused does not give him the right and liberty to establish sexual relations with her”.