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MILIND N. JADHAV
Vijay Chand Dubey – Appellant
Versus
State of Maharashtra – Respondent
JUDGMENT
Milind N. Jadhav, J.—Heard Mr. Prem Kumar, learned Advocate for Applicant and Ms. Devkar, learned appointed Advocate for Respondent No.2.
2. Applicant - accused has filed the present Application for regular bail in connection with Crime No. 551 of 2019 registered with D.N. Nagar Police Station for the offences punishable under Sections 363, 376 of IPC (Indian Penal Code, 1860) r/w Sections 4 and 8 of the POCSO (Protection of Children from Sexual Offences Act, 2012). First Informant is the father of victim. Date of occurrence / incident is from 19.11.2019 to 25.11.2019. Applicant is arrested on 25.11.2019 and is incarceration for 5 years 2 months and 23 days.
3. It is stated in the FIR that victim who is daughter of first informant aged 14 years old informed the First Informant that she was visiting her married sister staying at Andheri. Victim at that time was residing in Malad. Since the First Informant did not hear anything from victim for the next 4 days he asked his younger daughter to enquire about her whereabouts at that time. Younger daughter came back and informed the First Informant that victim had on the first day visited her elder sister’s house but immediately
Bail – Courts have favoured release of young offenders on bail pending trial so that regressive influences of jail environment can be avoided and keeping in mind principle of best interest.
A minor's consent is not valid for sexual intercourse, and the age of consent for sexual intercourse is definitively 18 years.
The court ruled that while consent is immaterial under POCSO, the circumstances of the relationship and lack of coercion are critical in bail considerations.
The court held that the prosecutrix's voluntary actions and apparent consent, despite her being a minor, are significant in determining bail eligibility.
The court held that the prosecutrix's consent, despite being a minor, and the absence of coercion or violence justified granting bail to the Applicant.
Bail – Presumption under Sections 29 and 30 of POCSO Act cannot be applied in absolute terms to application seeking bail.
The court held that a consensual relationship between a minor and an adult, in the absence of force, may warrant bail, emphasizing the importance of context and the nature of the relationship.
The court determined that the relationship between the applicant and the prosecutrix was consensual, which influenced the decision to grant bail despite the prosecutrix being a minor.
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