Allowed bail in a POCSO case where the victim's statement suggests elopement and consent, citing prior judgments allowing bail in romantic relationships between teens and noting jail overcrowding.
Release on bail subject to personal bond, two sureties, and strict conditions against contacting the victim or tampering with evidence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 73
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 57705 of 2022
Applicant :- Utkarsh @ Sarthak Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ramesh Kumar Pandey Counsel for Opposite Party :- G.A.,Rameshwar Prasad Mishra
Hon'ble Siddharth,J.
Heard learned counsel for the applicant; Shri Rajesh Kumar holding brief of Shri Ramrshwar Prasad Mishra, learned counsel for the informant and learned A.G.A.
The instant bail application has been filed on behalf of the applicant, Utkarsh @ Sarthak, with a prayer to release him on bail in Case Crime No. 590 of 2022, under Sections 376,363,368, IPC and section 3/4 POCSO Act Police Station Sahibabad, DistrictGhaziabad, during pendency of trial.
There are allegations of abduction of minor girl with intent to marry, commission of offence of rape and penetrative sexual assault against the applicant.Learned counsel for the applicant has submitted victim in her statement under section 164 Cr.P.C., has stated that she has left her parental house and eloped with applicant on own sweet will and she performed marriage with applicant in Vedic Sanskar Trust, Faridabad, Haryana. She went with applicant at different places but she has not raised any alarm or cried for help.Even if victim is minor, she has not made any allegation against the applicant. The applicant is in jail since 17.7.2022 and has no criminal history.
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.
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. The relevant paragraphs nos. 11 to 14 are as follows :-
" 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 or theorem. It contains inherent flexibility to cope up an extraordinary situation and to have more meaningful and larger good.
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.
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 :-
"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.
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.
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."
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
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.
released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
In case the trial has commenced, the trial court will conclude the same within a period one year as per section 309 Cr.P.C.
Order Date :- 23.2.2023 Atul kr. sri.
Digitally signed by :- ATUL KUMAR SRIVASTAVA High Court of Judicature at Allahabad
2 issues framed by the court
Whether bail should be granted when the victim appears to have consented to a relationship despite being a minor under POCSO charges.
Whether the prima facie opinions from higher courts and overcrowding warrants bail in POCSO cases where complicity is uncertain.
Colour shows how this judgement treated each authority
Atul Mishra vs. State of U.P.Distinguished¶9
Atul Mishra vs. State of U.P and 3 others in Criminal Misc. Bail Application No. 53947 of 2021
Faizan Wahid Baig vs. The State of MaharashtraFollowed¶17
Faizan Wahid Baig vs. The State of Maharashtra in Bail Application No. 3372 of 2021
Satendra Kumar Antil vs. C.B.I.Followed¶25
Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021
Utkarsh @ Sarthak
Siddharth
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
