Judicial Analysis Court Copy Headnote Facts Arguments Court observation

ALLAHABAD HIGH COURT
Krishan Pahal, J.
Prakash Kumar Gupta – Appellant
versus
State of U.P. and Others – Opp. Parties
Criminal Misc. Bail Application No.19345 of 2024
Decided on 29.8.2024

Advocates:
Counsel for the Parties:
For the Appellant: Raj Kumar Singh, Sunil Kumar Singh
For the Opp. Parties: Ajeet Kumar Singh, G.A.

IMPORTANT POINTS
(1) POCSO Act was never meant to criminalise consensual romantic relationships between adolescents.
(2) Radiology plays a crucial role in modern medicine, serving as backbone for various specialities like medicine, surgery, orthopaedics, gynaecology etc. – It is integral to diagnosis, treatment planning, and even in guiding interventions.

Headnote:
(A) Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 483 – Constitution of India – Article 21 – Bail – Applicant seeks bail in case crime under Sections 363, 366, 376(3) IPC and 5L/6 Protection of Children From Sexual Offences Act, 2012 – POCSO Act was never meant to criminalise consensual romantic relationships between adolescents – Fact of consensual relationship borne out of love should be of consideration while granting bail because it would amount to perversity of justice if statement of victim was ignored and accused was left to suffer behind jail – Ossification Test report indicates that victim is actually 19 years old – Victim is legally an adult and application of POCSO Act may be inappropriate in this case – Due to false representation of victim’s age, applicant has been incarcerated for a substantial period of more than 6 months – This wrongful imprisonment could have serious implications for applicant’s life, reputation, and future – Principle of “Presumption of Innocence Unless Proven Guilty,” gives rise to concept of bail as a rule and imprisonment as an exception – A person’s right to life and liberty, guaranteed by Article 21, cannot be taken away simply because the person is accused of committing an offence until guilt is established beyond reasonable doubt – Bail is not to be withheld as punishment – Object of bail is to secure attendance of accused at trial – Bail granted.(Paras 13, 14, 17, 18, 20,
21, 22, 24, 25 and 26)
(B) Bharatiya Nyaya Sanhita, 2023 – Section 64 – Rape victims – Woes and remedy – Victims are facing undue harassment due to delays in their medico-legal radiological examination, primarily caused by non-availability of radiologists in various districts across the State. It is unfortunate that many districts do not have any Radiologists posted, exacerbating the situation – Radiology plays a crucial role in modern medicine, serving as backbone for various specialities like medicine, surgery, orthopaedics, gynaecology etc. – It is integral to diagnosis, treatment planning, and even in guiding interventions – As Radiology continues to be a cornerstone of modern medicine, effectively supporting various branches of Allopathy, some curative action is need of hour – Directions issued.(Paras 37 and 38)
Result: Criminal Misc. Bail Application allowed.

JUDGMENT

A photocopy of the ossification test report has been placed on record filed in compliance of the order of this Court. It indicates that the age of the victim is about 19 years.

2. Heard Sri Raj Kumar Singh, learned counsel for the applicant and Sri Ajeet Kumar Singh, learned counsel for the informant as well as Sri V.K.S. Parmar, learned A.G.A. for the State and perused the material placed on record.

3. Applicant seeks bail in Case Crime No. 61 of 2023, U/S 363, 366, 376(3) IPC and 5L/6 Protection of Children From Sexual Offences Act, Police Station Sahatwar, District Ballia, during the pendency of trial.

Prosecution Story:

4. The applicant is stated to have enticed away the minor daughter of the informant aged about 13 years on 16.3.2023.

Arguments on Behalf of the Applicant:

5. The applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. He has nothing to do with the said offence.

6. The FIR is delayed by one day and there is no explanation of the said delay caused.

7. There is no time of offence mentioned in the FIR. The victim by her appearance, seems to be major. The victim was sent for ossification test and it is learnt that her age has come out to be 19 years.

8. The victim is the consenting party, as is but evident from her statement recorded u/s 164 Cr.P.C., whereby she has stated that she had gone with the applicant out of her own sweet will and had established corporeal relationship with him and has shown her willingness to spend the rest of her life in the house of her in-laws.

9. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length.

10. There is no criminal history of the applicant. The applicant is languishing in jail since 20.2.2024. In case, the applicant is released on bail, he will not misuse the liberty of bail.

Arguments on Behalf of Informant/State:

11. The bail application has been opposed on account of the age of the victim, which was 13 years at the time of offence. The victim was minor at the time of the said offence, as such, her consent, if any, cannot be taken into consideration in the eyes of law.

Conclusion:

12. The informant deliberately reported the victim’s age as 13 years, which is below the age of majority (18 years) and thus makes the case fall under the purview of the POCSO Act. This misrepresentation has led to severe legal consequences for the accused, which is his incarceration.

13. The ossification test report indicates that the victim is actually 19 years old. This suggests that the victim is legally an adult and, therefore, the application of the POCSO Act may be inappropriate in this case.

14. Due to the false representation of the victim’s age, the applicant has been incarcerated since 20.02.2024 which is a substantial period of more than 6 months. This wrongful imprisonment could have serious implications for the applicant’s life, reputation, and future.

15. The POCSO Act is designed to protect minors, but in this case, it appears to have been misused due to the false information provided by the informant. This misuse not only harms the applicant but also undermines the credibility and integrity of the legal system and the POCSO Act itself.

16. This situation exemplifies how the misuse of protective laws like the POCSO Act can lead to significant injustices. It underscores the need for careful verification of facts, especially in sensitive cases involving minors, to ensure that the law is applied appropriately and that justice is served for all parties involved.

17. POCSO Act was formulated to protect children under the age of 18 years from sexual exploitation. Nowadays more often than not it has become a tool for their exploitation. The Act was never meant to criminalise consensua