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When there is a romantic relationship between the two and that the sexual act involved between them was one of consensual, notwithstanding the fact that in the case of an alleged victim being a minor, consent has no legal validity, however, this aspect of the matter cannot be lost sight of while a plea for grant of bail is being considered by the court as held by the Hon’ble High Court of Meghalaya through the learned bench led by Hon’ble Mr. Justice W. Diengdoh in the case of Smti. Ephina Khonglah Vs. State of Meghalaya (BA. No. 14 of 2021).

The brief facts of the case are that the applicant has approached this Court with an application under Section 439 Cr.P.C. r/w section 31 of the POCSO Act with a prayer for grant of bail to the accused person Shri Silvester Khonglah. A complaint was made against the accused person Silvester Khonglah of Iarbamon village who is said to have picked up the minor daughter of the Complainant and has taken her to one place called Nongshyrngan near Bri War Resort and there he had sexually assaulted her and dropped her back to her place of stay. This was narrated to the said Complainant by her said minor daughter. However, the said minor daughter has also stated that when the said act was committed, it was with her (minor daughter) consent. The Complainant though has objected to their relationship as according to her knowledge, underage marriage is illegal. On lodgment of the said FIR, the police of Pynursla immediately took action and the accused person Silverter Khonglah was arrested on 18.12.2020 itself in connection with Pynursla P.S. Case No 70(12) 2020 u/s 5(l)/6 POCSO Act and investigation was launched accordingly. In due course, the investigation was completed, including the recording of statement of the Complainant, the victim and other relevant witnesses under section 161 and 164 Cr. P.C. respectively. A regular case being Special(POCSO) was then registered and the matter is now pending before the learned Special Judge(POCSO), Shillong.

The Hon’ble Court held, “ On perusal of the records, particularly the statement of the victim and the accused, prima facie it is apparent that there is a romantic relationship between the two and that the sexual act involved between them was one of consensual, notwithstanding the fact that in the case of an alleged victim being a minor, consent has no legal validity, however, this aspect of the matter cannot be lost sight of while a plea for grant of bail is being considered by the court.  Bail jurisdiction particularly u/s 439 Cr.PC, is one where the power of discretion has been conferred on the Court to exercise the same judiciously under the facts and circumstances of the case. In the light of the above, this Court is of the considered opinion that at this juncture the prayer of the Petitioner for grant of bail to the accused person Silvester Khonglah can be allowed.”

Click here to read the Judgment

Judgment reviewed by Vandana Ragwani