Bail in rape cases against the minor girl. My brother has falsely been prosecuted for the offence of rape. The neighbour has lodged a FIR against him that he had committed rape while she was playing in the field. There was no evidence that she was playing in the field. No witness saw that the victim was playing in the field. That allegation is false and frivolous. The sessions judge has cancelled the bail on the ground that there is enough evidence that the accused has committed the offence. Now I am planning to approach the high court for the bail. Please suggest whether the high court can grant bail in this matter?
The girl was minor at the time of commission of offence. Therefore, your brother has committed the offence under the special law i.e. Protection of Child from Sexual Offences Act.
If the medical report suggests that the girl was sexually exploited or subjected to sexual assault then it would be very tough to get bail from the High Court. Generally the court does not grant bail in sexual offences committed against a minor child unless the investigation has not been completed.
You should wait till the submission of the charge sheet under Section 173(2) of the Code of Criminal Procedure (crpc). After submission of the charge sheet, the court may grant bail:
- If there is no cogent evidence against the accused
- When the prosecution failed to prove the incident
- If prima facie no offence is made out against the accused
- After filing of the charge sheet there is no apprehension that the accused may temper with the evidence or manipulate the witnesses
- If the court thinks that accused is the sole bread earner and his incarceration may cause difficulty in contesting his case
- There is no chance that the accused may not cooperate in the trial
If the investigating officer has recorded the statement of the victim under Section 164 crpc and there is medical evidence in support of the commission of offence, you should wait till the filing of the charge sheet.
You cannot take a plea that it was consensual sex because the girl (victim) is minor. The consent of minor is immaterial in the rape case.
If there is no extreme urgency you should wait and let the investigating officer conclude the investigation. This is a special Act and bail is generally not granted by the court at the initial stage of investigation.
