Allowed

Roshan Kumar v. State of U.P. and 3 Others

Allahabad HC22 Aug 2023BAIL/36532/2023

Case brief

AI extract

What is this about?

Court allowed bail to an accused charged under IPC and POCSO for abduction and rape of a minor girl. The court noted the victim's apparent consent and admission without alleging rape. Bail granted subject to strict conditions ensuring no contact with the victim and cooperation in trial.

What did the court decide?

Application for bail allowed. Accused released on personal bond and two sureties with conditions to not contact the victim and cooperate in trial.

Roshan Kumar Vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:168480

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Court No. - 64

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36532 of 2023

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Applicant :- Roshan Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Chandra Bhushan Tiwari Counsel for Opposite Party :- G.A.

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Hon'ble Siddharth,J.

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Heard learned counsel for the applicant; Shri Ajay Kumar Singh, learned counsel for the informant and learned A.G.A.

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The instant bail application has been filed on behalf of the applicant, Roshan Kumar, with a prayer to release him on bail in Case Crime No. 233 of 2022, under Sections 363,366,376(3) IPC and 5/6 POCSO Act Police Station Mardah, District- Ghazipur, during pendency of trial.

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There is allegation against the applicant of abduction of minor girl with intent to marry , commission of rape besides offence under section 5/6 POCSO Act.Learned counsel for the applicant has submitted that victim in her statement recorded under section 164 Cr.P.C. has admitted eloping with applicant.,She has neither made allegation of rape nor abduction against the applicant. She married the applicant in temple.She has refused her medical examination.She is aged about 17 years.It is a case of false implication. The applicant is in jail since 1.5.2023 and has no criminal history.

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Learned A.G.A. and learned counsel for the informant have opposed the bail prayer of the applicant but could not dispute the aforesaid facts.

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This court considered whether the implication under POCSO Act would be justified where the victim appears of have consented to her relationship with an accused despite being minor. In the case of Atul Mishra vs. State of U.P and 3 others in Criminal Misc. Bail Application No. 53947 of 2021. The relevant paragraphs nos. 11 to 14 are as follows :-

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" 11. As mentioned above, undisputedly on the date of incident i.e. 06.11.2019, the victim Ms. ''A' was a

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minor girl and her ''consent' as contemplated u/s 375/376 I.P.C. has got no value in the eyes of law. This seems to be conservative approach to deal and decide the instant issue and rightly so. But as I have stated in the opening part of the order, that applicability of any statutory penal provision is not a mathematical exposition or theorem. It contains inherent flexibility to cope up an extraordinary situation and to have more meaningful and larger good.

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There can be no second thought as to the seriousness of the offence under the POCSO Act and the object to achieve. Enactment of POCSO Act was to effectively address the heinous crime of sexual abuse and sexual exploitation of children. The Act was introduced to provide protection of children from the offences of sexual assault and harassment etc. This Act also provides for safeguarding the interest of the child at every stage of judicial process. But this laudable object must have some genuine and inherent exceptions too. It is imperative for the Court of law to draw thin line that demarcates the nature of acts that should not be made to fall within the scope of this enactment. There are certain gray areas, where the severity of the sentences provided under the Act, rightly so be diluted keeping in view the facts of each case. If these rigors of the enactment is pasted hastily or irresponsibly, it could lead to irreparable damage to the reputation and future of young whose actions would have been only innocuous and may lead to spoiling the future life of that innocent lovers or couple who out of sheer innocence have initially developed and thereafter established that relationship, which if seen through the bioscope of these penal provisions of Act of 2012, would fall within the realm of offence.

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Growing incidences where teenagers and young adults fall victim of the offences under the POCSO Act, being slapped by the penal provisions of POCSO Act without understanding the far reaching implication of the severity of the enactment, is an issue that brings much concern to the conscience of this Court. A reading of the statement of objects and reasons of POCSO Act would show that, as

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mentioned, to protect the child from the offences of sexual abuse, sexual assault and harassment, pornography, pursuant to the Article-15 of the Constitution of India, 1950 and the Conservation on the Rights of the children.

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However, a large array of the cases filed under the POCSO Act seems to be those arising on the basis of the complaints/F.I.Rs. lodged by the families of adolescents and teenagers who are involved in romantic relationship with each other. The scheme of the Act clearly shows that it did not intend to bring within its scope or limits, the cases of the nature where the adolescents or teenagers involved in the dense romantic affair.

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This Court deems it fit and necessary to take a moment to delve into an important aspect, the awareness of which is crucial in understanding and appreciating with the cases of instant nature. It is crucial to accept the science and psychology of an adolescent and young adulthood at this juncture. This is because social and biological phenomenons are widely recognised as determinates of human development, health and socio-economic attainment across the life course, but our understanding of the underlying pathways and processes remains limited. Therefore, a "bio-social approach" needs to be adopted and appreciated i.e. one that conceptualizes the biological and social requirements of two teenagers, who on account of mutual infatuation are attracted and decide for their future. Their decision could be impulsive, immature but certainly not sinful or tainted as branded in the F.I.R. or complaint of the informant. "

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The Bombay High Court in the case of Faizan Wahid Baig vs. The State of Maharashtra in Bail Application No. 3372 of 2021 in about similar situation held in paragraph nos. 6 and 7 are as follows :-

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"6. Taking an overall view of the material compiled in the charge-sheet, it appears that the applicant though minor, was capable of understanding the consequences of her act and she voluntarily accompanied the applicant to he aunt's place. Though she is minor and he consent become immaterial, in a case like this, where she voluntarily

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joined the company of the applicant, and she had categorically admitted that she was in love with the applicant, whether that she consented for the sexual intercourse or not, is the matter of evidence. Till what point of time, she accompanied the applicant and whether she resisted the actual physical indulgence, when according to her, the applicant forcibly committed sexual intercourse with her against her wishes, will have to be determined. In any case, the prosecuterix / victim kept quite till her whatsapp chat with the applicant was objected to, by the family members and then she narrated the incident which was alleged to have taken place on 06.04.2020. The time gap between these two events is also crucial as it was always open for the prosecuterix to disclose the aunt about the forcible act if it was committed in her house, but she continued to remain silent and disclosed the incident only when an objection was taken for she establishing contact with the applicant.

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In the aforesaid circumstances and particularly, when the applicant is also a young boy, the possibility of he also smitten by infatuation, cannot be ruled out and though he may take the consequences of the accusations levelled against him, at present, he need not be further incarcerated being arrested on 29.04.2021, when the trial may consume considerable time.

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This is however, subject to the stipulation that he shall, in no way establish contact with the prosecutrix and shall move himself along with the family from the area where the prosecutrix is residing and shall not enter in no way make any attempt to establish contact with him, either physically or virtually.

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Observations made above the prima facie in nature and limited for the purpose of adjudication of the present application, and shall in no way, bind the Sessions Judge while he is trying the applicant for the offence with which he is charged."

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In view of the above considerations, applicant deserves to be enlarged on bail keeping in view the consent of victim by her behaviour.

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Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India; considering the dictum of Apex Court in the recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021; considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed

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Let the applicant be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

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The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.

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The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police ofÏcer;

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The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of

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liberty of bail and pass orders in accordance with law to ensure presence of the applicant.

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The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufÏcient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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Order Date :- 22.8.2023 Atul kr. sri.

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Digitally signed by :- ATUL KUMAR SRIVASTAVA High Court of Judicature at Allahabad

Roshan Kumar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Roshan Kumar v. State of U.P. and 3 Others

Case brief

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What did the court decide?

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