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

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 & 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”.

Referring to the judgment in the case of Raghumath Ramnath Zolekar vs. the State of Maharashtra, the high court decided to dismiss the bail petition of the petitioner on the grounds that the accused believed the victim to be of 18 years of age and committed the sexual act with her consent. However, since the victim was under 18 years of age and her consent is immaterial, prima facie amounts to statutory rape.

Click here to read the Judgement

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