Vikram @ Vicky Vs State of Hp

¶1

2026:HHC:29835

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶3

Cr. MP (M) No. 1041 of 2026 Reserved on : 20.07.2026 Date of Decision: 21.7.2026.

¶4

Vikram @ Vicky ….Petitioner Versus State of HP ….Respondent

¶5

Coram

¶6

Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No.

¶7

For the Petitioner	:	Mr Janmajai Advocate.	Chauhan,
For the Respondent/State	:	Mr Lokender Additional Advoca	Kutlehria, te General
		with SI Mohinder Shillai, District Srim	Singh P.S. our, H.P.
		The victim is presen	t in person.

¶8

Rakesh Kainthla, Judge

¶9

The petitioner has filed the present petition for

¶10

seeking regular bail in FIR No. 32 of 2025, dated 30.06.2025, registered at Police Station Shillai, District Sirmaur, H.P., for the commission of offences punishable under Section 64 of

¶11

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

¶12

2

¶13

2026:HHC:29835

¶14

Bharatiya Nyaya Sanhita (BNS), 2023 and Sections 4 and 6 of the Protection of Children from Sexual Offences ( POCSO ) Act, 2012.

¶15

It has been asserted that, as per the prosecution, the victim showed up at Community Health Centre Ronhat for her checkup. She was found positive for pregnancy. The doctor in charge informed the Police Station Shillai. The police recorded the victim's statement and registered the F.I.R. As per the victim's version, she was alone in her home, and the petitioner had sexual intercourse with her. She missed her menstrual period and went to the Community Health Centre for her checkup, where she was found to be pregnant. The pregnancy of the victim was subsequently terminated. The police arrested the petitioner on 01.07.2025. The police filed a charge sheet after the completion of the investigation. The prosecution has examined 5 witnesses out of 21 cited by it. The victim and her mother have deposed in favour of the accused. The statements of official witnesses are to be recorded. The victim was not a minor on the date of the incident, and no offence punishable under Sections 4 and 6 of the POCSO Act is made out against the petitioner. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

¶16

3

¶17

2026:HHC:29835

¶18

The petition is opposed by filing a status report, asserting that the victim was studying in class Ninth. She knew the petitioner. The victim's relatives had gone to Village Dahar, and the victim was alone. The petitioner visited the victim's house and maintained a sexual relationship with her. The victim missed her menstrual period, and she went to CHC Ronhat, where the result of the pregnancy test was found to be positive. The police registered the FIR and investigated the matter. The victim’s date of the birth certificate issued by the school showed that the victim was born on 04.03.2011. The victim was a minor on the date of the incident. The victim's pregnancy was terminated. The samples were sent to the FSL, and as per the report, the petitioner is the biological father of the fetus. The charge sheet was filed before the Court after the completion of the investigation. Statements of 10 witnesses out of 21 have been recorded, and the matter is listed on 27.07.2026 and 28.07.2026 before the learned Trial Court. Hence, the status report.

¶19

I have heard Mr Janmajai Chauhan, learned counsel for the petitioner, Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State and the victim, who appeared in person before the Court.

¶20

4

¶21

2026:HHC:29835

¶22

Mr Janmajai Chauhan, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The victim was not a minor. She and her mother have recanted their testimonies. Petitioner has remained behind bars for about one year, and the prosecution has not completed the evidence. The petitioner's right to a speedy trial is being violated, and the petitioner is entitled to bail. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

¶23

Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State, submitted that the victim was a minor on the date of the incident and could not have consented to any sexual intercourse between her and the petitioner. The petitioner had taken advantage of the victim's minority and impregnated her. The offence is heinous, and no leniency should be shown to the petitioner. Hence, he prayed that the present petition be dismissed.

¶24

The victim, who appeared in person, stated that she had no objection to releasing the petitioner on bail.

¶25

5

¶26

2026:HHC:29835

¶27

I have given a considerable thought to the

¶28

submissions made at the bar and have gone through the records carefully.

¶29

The parameters for granting bail were considered by the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC

¶30

314: 2025 SCC OnLine SC 781, wherein it was observed at page 380:

¶31

( i ) Broad principles for the grant of bail

¶32

56. In Gudikantis Narasimhulu v. High Court of A.P., (1978) 1 SCC 240: 1978 SCC (Cri) 115 , Krishna Iyer, J., while elaborating on the content of Article 21 of the Constitution of India in the context of personal liberty of a person under trial, has laid down the key factors that should be considered while granting bail, which are extracted as under: (SCC p. 244, paras 7-9)

¶33

“ 7 . It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence is also pertinent. The punishment to which the party may be liable, if convicted or a conviction is confirmed, also bears upon the issue.

¶34

8 . Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being . [ Patrick Devlin, “The Criminal Prosecution in England” (Oxford University Press, London 1960) p. 75 — Modern Law Review, Vol. 81, Jan. 1968, p. 54.]

¶35

9 . Thus, the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record,

¶36

6

¶37

2026:HHC:29835

¶38

particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, based on evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance .” (emphasis supplied)

¶39

57. In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280: 2001 SCC (Cri) 674 , this Court highlighted various aspects that the courts should keep in mind while dealing with an application seeking bail. The same may be extracted as follows: (SCC pp. 284-85, para 8)

¶40

“ 8 . The jurisdiction to grant bail has to be exercised on the basis of well-settled principles, having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge .” (emphasis supplied)

¶41

58. This Court in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688 , speaking through Banerjee, J., emphasised that a court exercising discretion in matters of bail has to undertake the same judiciously. In highlighting that bail should not be granted as a matter of

¶42

7

¶43

2026:HHC:29835

¶44

course, bereft of cogent reasoning, this Court observed as follows: (SCC p. 602, para 3)

¶45

“ 3 . Grant of bail, though being a discretionary order, but, however, calls for the exercise of such a discretion in a judicious manner and not as a matter of course. An order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts do always vary from case to case. While the placement of the accused in society, though it may be considered by itself, cannot be a guiding factor in the matter of grant of bail, the same should always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — the more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter .” (emphasis supplied)

¶46

59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977 , this Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the merits of the case, yet the court is required to indicate the prima facie reasons justifying the grant of bail.

¶47

60. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496: (2011) 3 SCC (Cri) 765 , this Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, rendering it illegal. This Court held as under with regard to the circumstances under which an order granting bail may be set aside. In doing so, the factors which ought to have guided the Court's decision to grant bail have also been detailed as under: (SCC p. 499, para 9)

¶48

“ 9 . … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally

¶49

8

¶50

2026:HHC:29835

¶51

incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are :

¶52

( i ) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence ;

¶53

( ii ) nature and gravity of the accusation ;

¶54

( iii ) severity of the punishment in the event of conviction ;

¶55

( iv ) danger of the accused absconding or fleeing, if released on bail ;

¶56

( v ) character, behaviour, means, position and standing of the accused ;

¶57

( vi ) likelihood of the offence being repeated ;

¶58

( vii ) reasonable apprehension of the witnesses being influenced; and

¶59

( viii ) danger, of course, of justice being thwarted by grant of bail .” (emphasis supplied)

¶60

xxxxxxx

¶61

62. One of the judgments of this Court on the aspect of application of mind and requirement of judicious exercise of discretion in arriving at an order granting bail to the accused is Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170 , wherein a three-Judge Bench of this Court, while setting aside an unreasoned and casual order ( Pappu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2856 and Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat 2857 ) of the High Court granting bail to the accused, observed as follows: ( Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170] ), SCC p. 511, para 35)

¶62

“ 35 . While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while

¶63

9

¶64

2026:HHC:29835

¶65

considering an application for bail courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record to enable a court to arrive at a prima facie conclusion. While considering an application for the grant of bail, a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence(s) alleged against an accused .” (emphasis supplied)

¶66

Hon’ble Supreme Court held in State of Rajasthan v.

¶67

Balchand , (1977) 4 SCC 308: 1977 SCC (Cri) 594: 1977 SCC OnLine SC 261 that the normal rule is bail and not jail, except where the

¶68

gravity of the crime or the heinousness of the offence suggests

¶69

otherwise. It was observed at page 308:

¶70

2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.

¶71

3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also, the heinousness of the crime….”

¶72

10

¶73

2026:HHC:29835

¶74

The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

¶75

The status report specifically mentions that the DNA analysis of the petitioner, victim and fetus revealed that the petitioner was the biological father of the fetus, whereas the victim was the biological mother of the fetus. The victim had also stated before the police that the petitioner had maintained a sexual relationship with her in the absence of her family members. Therefore, the petitioner is, prima facie, connected to the commission of the crime.

¶76

It was submitted that the victim and her mother have not supported the prosecution's case, and the petitioner is entitled to bail. This submission is only stated to be rejected. It was laid down by the Delhi High Court in Dineet v. State (NCT of Delhi), 2025 SCC OnLine Del 8603, that it is impermissible for the bail Court to appreciate the evidence recorded during the trial and grant bail on the ground that the witness has not supported the prosecution’s case. It was observed:

¶77

“17. Addressing Mr Mahajan's submissions, it is pertinent to note that nearly the entirety of the petitioner's case rests upon the assumption that this Court may enter into witness

¶78

11

¶79

2026:HHC:29835

¶80

testimonies and evidence to determine contradictions and the hostility of witnesses at the stage of bail.

¶81

18. However, it is trite that the same is not within the power of this Court at the stage of bail, as laid down in Satish Jaggi v. State of Chhattisgarh (2007) 11 SCC 195 : (2008) 1 SCC (Cri) 660 , paragraphs 11 and 12 of which merit reproduction:

¶82

“11. On the aforesaid reasoning, the learned Chief Justice thought it fit to grant bail. Mr. A.K. Ganguli, learned Senior Counsel appearing on behalf of the appellant complainant, Mr. Amarendra Sharan, learned ASG appearing on behalf of CBI and Mr. Rajiv Dutta, learned Senior Counsel appearing on behalf of the State of Chhattisgarh strenuously contended that having regard to the observations and findings of the learned Chief Justice as recorded above, it clearly shows that the learned Chief Justice while granting bail to the accused virtually decided the case on merit which amounts to acquitting the accused of the criminal charge levelled against him without trial. Per contra, Mr Vivek Tankha, learned Senior Counsel, contended that now the evidence is closed, so there is no question of the accused tampering with the prosecution witnesses or fleeing from justice. He further contended that now the arguments in the case have finally started, and the arguments of the prosecution are over, and only the defence is to give its reply. He, accordingly, contended that the bail granted by the learned Chief Justice need not be disturbed.

¶83

12. Normally, if the offence is non-bailable, bail can also be granted if the facts and circumstances so demand. We have already observed that in granting bail in a nonbailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society were not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings,

¶84

12

¶85

2026:HHC:29835

¶86

the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress, and if such findings are allowed to stand, it would seriously prejudice the prosecution's case. At the stage of granting bail, the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of the credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.”

¶87

19. By virtue of the aforementioned paragraphs from the Hon'ble Supreme Court's decision in Satish Jaggi , it is evinced that this Court, at the stage of Bail, cannot look into the allegations of PW2 being a witness who has turned hostile, nor apply its mind to alleged contradictions in his statement under Section 161 of the CrPC when compared with his testimony in Court, as the same would amount to appreciation of the evidentiary value of his statement and testimony, and this is an exercise that is only to be conducted during the course of trial.

¶88

20. The same has been relied upon by the Hon'ble Supreme Court in the judgment of State of Karnataka v. Sri Darshan 2025 SCC OnLine SC 1702 , with the following paragraphs of this decision reproduced for ready reference:

¶89

“20.2.5. Further, such an approach of the High Court is contrary to the judicial precedents of this court, including Satish Jaggi v. State of Chhattisgarh (supra) , Kanwar Singh Meena v. State of Rajasthan⁴ , wherein it was held that courts, while considering bail, should not assess the credibility of witnesses, as this function squarely lies within the domain of the trial Court. Thus, the impugned order of the High Court violates this principle by commenting on the delay in the witness statements and imputing a lack of credibility at this stage” (emphasis supplied)

¶90

*****

¶91

“20.3.6. In the present case, the High Court also proceeded to analyse and discount the credibility of certain prosecution witnesses and forensic material. It

¶92

13

¶93

2026:HHC:29835

¶94

observed contradictions in the eyewitness statements concerning the overt acts of the accused (para 26). It expressed doubts about the prosecution's explanation for the delay in recording the statements of CW. 76 and CW. 91 (para 27). It questioned the timing of the doctor's supplementary opinion and weighed its evidentiary worth (para 31). As already pointed out, the credibility or reliability of witnesses is a matter for the trial Court to determine after full-fledged cross-examination. It is a trite law that statements recorded under section 161 Cr. P.C. are not substantive, and their evidentiary value can only be determined after cross-examination during trial. Any opinion rendered at the bail stage risks prejudging the outcome of the trial and must be avoided. Thus, the court's assessment of these aspects amounts to a premature appreciation of the probative value of prosecution evidence. ” (emphasis supplied)

¶95

*****

¶96

“24. On a cumulative analysis, it is evident that the order of the High Court suffers from serious legal infirmities. The order fails to record any special or cogent reasons for granting bail in a case involving charges under Sections 302, 120B, and 34 IPC. Instead, it reflects a mechanical exercise of discretion, marked by significant omissions of legally relevant facts. Moreover, the High Court undertook an extensive examination of witness statements at the pre-trial stage, highlighting alleged contradictions and delays - issues that are inherently matters for the trial Court to assess through cross-examination. The trial Court alone is the appropriate forum to evaluate the credibility and reliability of witnesses. Granting bail in such a serious case, without adequate consideration of the nature and gravity of the offence, the accused's role, and the tangible risk of interference with the trial, amounts to a perverse and wholly unwarranted exercise of discretion. The well-founded allegations of witness intimidation, coupled with compelling forensic and circumstantial evidence, further reinforce the necessity for cancellation of bail. Consequently, the liberty granted under the impugned order poses a real and imminent threat to the

¶97

14

¶98

2026:HHC:29835

¶99

fair administration of justice and risks derailing the trial process. In light of these circumstances, this Court is satisfied that the present case calls for the exercise of its extraordinary jurisdiction under Section 439(2) Cr. P.C.” (emphasis supplied)

¶100

21. Drawing inspiration from the judgment in Darshan , the hostility of a witness cannot be interpreted as an automatic declaration of the prosecution's case as unconvincing, and thereby, in essence, result in the conduction of a mini-trial at the stage of bail and return findings upon the ex facie merit of the accused's innocence/guilt.

¶101

It was laid down by the Hon’ble Supreme Court in X

¶102

Vs. State of Rajasthan MANU/SC/1267/2024 that ordinarily, in serious offences, the Trial Court or the High Court should not entertain the bail application of the accused after the commencement of the trial and grant bail because of some discrepancy in the testimony. It was observed: -

¶103

“14. Ordinarily, in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High Court, should be loath to entertain the bail application of the Accused.

¶104

Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim.

¶105

We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial

¶106

15

¶107

2026:HHC:29835

¶108

commences, it should be allowed to reach its conclusion, which may either result in the conviction of the Accused or the acquittal of the Accused. The moment the High Court exercises its discretion in favour of the Accused and orders the release of the Accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only if the trial gets unduly delayed and that, too, for no fault on the part of the Accused, the Court may be justified in ordering his release on bail on the ground that the right of the Accused to have a speedy trial has been infringed.”

¶109

Similarly, it was held by this Court in Suraj Singh v.

¶110

State of H.P., 2022 SCC OnLine HP 268 that the Court exercising bail jurisdiction cannot appreciate the contradictions in the

¶111

evidence. It was observed:

¶112

10. Petitioner has placed reliance on the statements of witnesses already recorded by the learned Special Judge, in support of his argument to the effect that, from perusal of these statements, reasonable grounds can be entertained for concluding prima facie innocence of the petitioner. The arguments raised on behalf of the petitioner deserve to be rejected for the reason that this Court, while dealing with the bail application, will not appreciate the evidence being recorded during the trial. Undisputedly, only some of the witnesses out of the entire list of witnesses relied upon by the prosecution have been examined. In these circumstances, it is not prudent to form any opinion as to the innocence or guilt of the petitioner on the basis of such partial evidence.

¶113

16

¶114

2026:HHC:29835

¶115

Therefore, it is impermissible to release the petitioner

¶116

on bail because the victim and her mother have not supported the prosecution's case.

¶117

It was submitted that the victim was not a minor on the date of the incident. This submission cannot be accepted as correct. The status report mentions that the victim was born on 04.03.2011 as per the certificate issued by the school where the victim is studying, which means that she was aged 14 years on the date of the incident. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, makes the certificate issued by the school the primary evidence of the date of birth² . Therefore, the certificate has to be, prima facie, accepted as correct during the present proceedings.

¶118

It was submitted that the victim was a consenting party. She had not reported the matter to any person, and the matter came to light when the victim got pregnant. This submission will not help the petitioner. The victim was a minor and incapable of giving consent. The legislature enacted the POCSO Act to protect children from themselves as well as from

¶119

2 V vs. State of H.P. 2024:HHC:13464

¶120

17

¶121

2026:HHC:29835

¶122

others who are minded to prey upon them³ . The children are deemed to be incapable of consent, and consent is no defence to the offences punishable under the POCSO Act. Dealing with the plea of consent under the Sexual Offences Act 2003 (which is almost similar to the POCSO Act but for the age, which is 13, under the Sexual Offences Act, 2003 and 18 under the POCSO Act), Baroness Hale of Richmond held in R vs G [2008] UKHL 37 as under:

¶123

“44. Section 5 of the 2003 Act has three main features. First, it singles out penetration by the male penis as one of the most serious sorts of sexual behaviour towards a child under 13; second, it applies to such penetration of a child under 13 of either sex; and thirdly, it calls this “rape". This is its novel feature, but it is scarcely a new idea. The offences of unlawful sexual intercourse under sections 5 and 6 of the 1956 Act were often colloquially known as “statutory rape". This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence (although it may, of course, be relevant to the appropriate sentence). Even if a child is fully capable of understanding and freely agreeing to such sexual activity, which may often be doubted, especially with a child under 13, the law says that it makes no difference. He or she is legally disabled from consenting.

¶124

45. There are a great many good reasons for this: see, eg, R v Hess; R v Nguyen [1990] 2 SCR 906 , per McLachlin J. It is important to stress that the object is not only to

¶125

3 R v Corran [2005] EWCA Crim 192, para 6

¶126

18

¶127

2026:HHC:29835

¶128

protect such children from predatory adult paedophiles but also to protect them from premature sexual activity of all kinds. They are protected in two ways: first, by the fact that it is irrelevant whether or not they want or appear to want it; and secondly, by the fact that, in the case of children under 13, it is irrelevant whether or not the possessor of the penis in question knows the age of the child he is penetrating.

¶129

Xxx

¶130

54. In effect, therefore, the real complaint is that the appellant has been convicted of an offence bearing the label “rape". Parliament has very recently decided that this is the correct label to apply to this activity. In my view, this does not engage the Article 8 rights of the appellant at all, but if it does, it is entirely justified. The concept of private life “covers the physical and moral integrity of the person, including his or her sexual life” ( X and Y v The Netherlands , para 22). This does not mean that every sexual relationship, however brief or unsymmetrical, is worthy of respect, nor is every sexual act that a person wishes to perform. It does mean that the physical and moral integrity of the complainant, vulnerable by reason of her age if nothing else, was worthy of respect. The state would have been open to criticism if it did not provide her with adequate protection. This it attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not, in my view, amount to a lack of respect for the private life of the penetrating male.

¶131

55. Even supposing that it did, it cannot be an unjustified interference with that right to label the offence which he has committed “rape". The word “rape” does indeed connote a lack of consent. But the law has disabled children under 13 from giving their

¶132

19

¶133

2026:HHC:29835

¶134

consent. So there was no consent. In view of all the dangers resulting from underage sexual activity, it cannot be wrong for the law to apply that label even if it cannot be proved that the child was, in fact, unwilling. The fact that the appellant was under 16 is obviously relevant to his relative blameworthiness and has been reflected in the second most lenient disposal available to a criminal court. But it does not alter the fact of what he did or the fact that he should not have done it. In my view, the prosecution, conviction and sentence were both rational and proportionate in the pursuit of the legitimate aims of the protection of health and morals and the rights and freedoms of others.”

¶135

19. The argument that the minor had misrepresented her

¶136

age and the accused was not liable was repelled as under:

¶137

“He also commits an offence if he behaves in the same way towards a child of 13 but under 16, albeit only if he does not reasonably believe that the child is 16 or over. So in principle, sex with a child under 16 is not allowed. When the child is under 13, three years younger than that, he takes the risk that she may be younger than he thinks she is. The object is to make him take responsibility for what he chooses to do”

¶138

20. Dealing with the dangers of premature sexual activities, the court held that:

¶139

“Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected, whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who

¶140

20

¶141

2026:HHC:29835

¶142

has practised in the family courts is only too well aware of the long-term and serious harm, both physical and psychological, which premature sexual activity can do. And the harm which may be done by premature sexual penetration is not necessarily lessened by the age of the person penetrating. That will depend upon all the circumstances of the case, of which his age is only one.” 21. It was admitted that the prosecution had failed to

¶143

complete the evidence, and the petitioner's right to a speedy trial was being violated. This submission will not help the petitioner. The petitioner has been charged with the commission of offences punishable under Sections 4 and 6 of the POCSO Act. Section 6 provides for rigorous imprisonment, which will not be less than 20 years, but which may extend to imprisonment for life, which means the imprisonment for the remainder of the natural life of that person. Thus, the offence is heinous and severely punishable. It was laid down by the Hon’ble Supreme Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P. , (1978) 1 SCC 240: 1978 SCC (Cri) 115: 1977 SCC OnLine SC 327 that when the punishment is severe, the person is not entitled to bail. It was observed at page 244:

¶144

“6. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different

¶145

21

¶146

2026:HHC:29835

¶147

footing. We are concerned with the penultimate stage, and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve a sentence in the event of the Court punishing him with imprisonment. In this perspective, the relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. J. indicated that when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment for it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. [ Mod. Law Rev. p. 50 ibid., 1852 I E & B 1] Lord Campbell, C.J., concurred in this approach in that case, and Coleridge J. set down the order of priorities as follows: [ Mod. Law Rev. ibid., pp. 50-51 ]

¶148

“I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial .... It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point, three elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death.”

¶149

7. It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence also is pertinent. The punishment to which the party may be

¶150

22

¶151

2026:HHC:29835

¶152

liable, if convicted or conviction is confirmed, also bears upon the issue.

¶153