Minor girl sending a friend request on Facebook does not give accused the liberty to establish sexual relations: Himachal Pradesh High Court

The Himachal Pradesh High Court recently denied bail to a 19-year-old boy accused of sexually assaulting a 13-year old girl holding that the victim sending a friend request to the accused on Facebook does not give him the right to establish sexual relations with the minor girl (Rajeev v State of HP)..The accused, who took the girl to a hotel where he committed coitus with her, had taken the defence that the victim had sent him a friend request on Facebook and that since she had created a Facebook account in her name, it made him believe that she was aged 18 years and more.."People use social media for networking, knowledge, and entertainment and indeed not to get stalked or be exploited sexually and mentally. 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," the Court ruled..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.Himachal Pradesh High Court .Justice Anoop Chitkara categorically said that the argument of the petitioner did not hold any ground while relying on the terms of Facebook as per which a person needs to be at least 13 years of age and not 18 to create an account..The Court clarified that consent was out of the question as the restrictions on age imposed vide Indian Penal Code, 1860, and the Protection of Children from Sexual Offences Act, 2012, made it clear that a child under 18 years of age could not consent for sex.."It is not unusual for youngsters to make new social connections by sending friend requests. 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. The use of social media in present times is a norm. People use social media for networking, knowledge, and entertainment and indeed not to get stalked or be exploited sexually and mentally," added the Court..The argument that the prosecutrix had mentioned her age as 18 years on her Facebook profile was also found to be immaterial as there was no evidence of any kind to support the claim. .In this regard, the single-judge bench said it was not uncommon for people to not reveal everything about their age and identity on social media as it is a public platform. ."If a child mentions the wrong age on Facebook, it does not become a gospel truth, and it certainly does not lead to a prima facie presumption that such person is not a child but a major of 18 years of age or above," the Court underscored. .The Court further relied on Ragunath Ramnath Zolekar v State of Maharashtra wherein the Bombay High Court dealt with mistake of age as a defence and rejected the argument that mens rea was a part of Section 375 and 376 IPC and unless and until the knowledge of the accused that the prosecutrix being below the age of 16 years was proved, the penal liability for the said act will not be attracted. ."We, therefore, hold relying on the judgment in case of B (A Minor) v. Director of Public Prosecutions (2002 Appeal Cases), that the phrase “with knowledge that prosecutrix is below 16 years of age” cannot be read as if present in clause sixth of Section 376 of the Indian Penal Code. If any such attempt is made, it shall amount to tinkering with the scheme of statute," the Bombay High Court had observed. .Thus, given the peculiar facts and circumstances of the case, the Himachal Pradesh High court dismissed the petition noting that the accused failed to make out a case for bail..[Read Order]