Allowed

Ankit Tiwari v. State of U.P and 3 Others

Allahabad HC27 Sept 2023BAIL/56504/2022

Case brief

AI extract

What is this about?

In a bail application regarding charges of abduction and unlawful confinement of a minor girl with intent to marry under the POCSO Act, the High Court cited precedent to distinguish genuine romantic relationships involving consensual eloping teens from criminal sexual offenses. Relying on the victim's apparent consent and the nature of their relationship, the court allowed bail while imposing stri

What did the court decide?

Applicant Ankit Tiwari ordered released on bail subject to furnishing personal bond and two sureties, and compliance with conditions prohibiting contact with the victim and ensuring court attendance.

Ankit Tiwari Vs State of U.P and 3 Others — Pension and Retirement Benefits | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:188412

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Court No. - 64

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56504 of 2022

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Applicant :- Ankit Tiwari Opposite Party :- State Of U.P And 3 Others Counsel for Applicant :- Rajkishore Singh Counsel for Opposite Party :- G.A.,Neetu Singh,Santosh Kumar Mishra

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Hon'ble Siddharth,J.

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Heard Sri Devash Kumar Gupta, Advocate, holding brief of Sri Raj Kishore Singh, learned counsel for the applicant, Sri Neetu Singh, learned counsel for the informant and learned A.G.A. for the State.

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There is allegation against the applicant of abduction and unlawful confinement of minor girl with intent to marry.

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Learned counsel for the applicant submits that in the first information report the age of the victim is only 17 years. The victim has claimed her age as 19 years in her statement recorded under Section 164 Cr.P.C. As per her statement before the Doctor, she is clearly a consenting party. She admitted eloping with the applicant and going to Varanasi. From Varanasi to Vrindavan. In Vrindavan she has claimed to have married the applicant in Ram Janki Mandir. Applicant is also aged about 18 years. Learned counsel for the applicant further submits that in the statement recorded under Section 161 Cr.P.C., victim has clearly given a consenting statement and has stated that she has married and also contacted pregnancy and wants to live with the applicant. In her statement recorded under Section 164 Cr.P.C., she has made wild allegations against number of persons including the applicant for the first time that they have committed gang rape of the victim. It is absolutely false implication. It is a case of love and romance between the victim and the applicant who are of about the same age . Applicant is in jail since 07.07.2022 and has no criminal history to credit.

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Learned AGA has opposed the prayer for bail but could not dispute the above submissions.

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After hearing rival contentions, this court had to consider 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 , this Court has occasion to consider such an issue. 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 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

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or theorem. It contains inherent flexibility to cope up an extraordinary situation and to have more meaningful and larger good.

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12. 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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13. 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 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. 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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14. 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 socioeconomic 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

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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 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 eventws 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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7. 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 and statements.

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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 and 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 and 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, Ankit Tiwari, involved in Case Crime No.455 of 2022, under Sections 376/363, 342 I.P.C and 5/6 POCSO Act, Police Station Kotwali Nagar, District- Banda 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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(i) The applicant shall not tamper with the evidence or threaten the witnesses.

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(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when 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 liberty of bail and pass orders in accordance with law.

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(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

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(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code.

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(v) 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 absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.

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Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

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Order Date :- 27.9.2023 SS

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Digitally signed by :- SURENDAR SINGH NARANG High Court of Judicature at Allahabad

Ankit Tiwari v. State of U.P and 3 Others

Case brief

What is this about?

What did the court decide?

Ankit Tiwari v. State of U.P and 3 Others

Case brief

What is this about?

What did the court decide?

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