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ALLAHABAD HIGH COURT
Krishan Pahal, J.
Amarjeet Pandey – Applicant
versus
State of UP and Ors. – Opp. Parties
Criminal Misc. Bail Application No.40524 of 2024
Decided on 3.4.2025
(A) Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 483 – Constitution of India – Article 21 – Bail application – Applicant seeks bail in offences under Sections 137(2), 61(2), 65(1) of B.N.S. and 3/4(2) of POCSO Act, 2012 – 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 of Constitution, cannot be taken away simply because the person is accused of committing an offence until guilt is established beyond reasonable doubt – No one’s life or personal liberty may be taken away unless procedure established by law is followed and procedure must be just and reasonable – Bail is not to be withheld as a punishment – Prima facie satisfaction of case is needed but it is not the same as an exhaustive exploration of merits in the order itself – Considering facts and circumstances of case, evidence on record, applicant having no criminal history, fact that victim had stated herself to be 18 years old in her statement recorded u/s 180 B.N.S.S. before Investigating Officer and also the fact that she is consenting party as per her statement recorded u/s 183 B.N.S.S., applicant has made out a case for bail – Bail granted. (Paras 15, 16, 17, 20, 21 and 22)
(B) Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 – Determination of age – Ossification Test – There exists a disturbing pattern in the manner in which age of individuals, particularly in criminal proceedings, is being misrepresented and inadequately verified – The issue has multiple dimensions involving litigants, law enforcement, and the health department, all contributing to a systemic failure – It is imperative that: (i) For developing a mechanism for stringent verification of documents submitted for age determination, Police is directed to strictly adhere to Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 and be trained accordingly; (ii) Immediate steps be taken by Health Department to appoint or depute at least one Radiologist in district of Ballia to ensure compliance with provisions of the Act – Failure to address these issues may lead to continued abuse of legal provisions intended to protect genuinely vulnerable juveniles, thereby eroding public trust in justice system. (Para 32)
Result: Bail Application allowed.
JUDGMENT
Krishan Pahal, J.—List has been revised.
2. Affidavit of compliance filed by learned A.G.A. today, is taken on record.
3. As informed by learned A.G.A., notice to the informant has been served on 4.11.2024.
4. Heard Sri Mrityunjay Singh, learned Advocate holding brief for Sri Devottam Pandey, learned counsel for the applicant and Sri V.K.S. Parmar, learned A.G.A. for the State and perused the material placed on record.
5. Applicant seeks bail in Case Crime No. 197 of 2024, U/S 137(2), 61(2), 65(1) B.N.S. and 3/4(2) POCSO Act, Police Station Gadwar, District Ballia, during the pendency of trial.
Prosecution Story:
6. The FIR was instituted by the informant stating that his 16-year old daughter had left for college on 10.9.2024 at 9.00 am and did not return till the evening. After taking up frantic search, it was revealed that the applicant in collusion with the co-accused person Rikhimuni Pandey had enticed away his minor daughter.
Arguments on Behalf of the Applicant:
7. 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.
8. The FIR is delayed by four days and there is no explanation of the said delay caused.
9. The victim is the consenting party, as is evident from her statement recorded u/s 183 B.N.S.S., whereby she has categorically stated that she was in love with the applicant. She has also stated that the applicant had promised to marry her, as such, she left her house in the morning of 10.9.2024 at about 10.00 am and went with the applicant to Gujarat and stayed there in the house of his maternal uncle. She had established corporeal relationship with the applicant on the said promise of marriage only.
10. The victim in her statement recorded u/s 180 B.N.S.S. has categorically stated that she is 18 years old and she had left her house after being scolded by her parents. The said statement is contradictory to the FIR and her statement recorded u /s 183 B.N.S.S.
11. There is no medical corroboration of the incident, as the victim had not sustained any injury, whatsoever.
12. The applicant alongwith his maternal aunt and uncle had taken her back to her native place after coming to know about the instant FIR. She has further stated that her parents are also ready to marry her off.
13. There is no criminal history of the applicant. The applicant is languishing in jail since 25.9.2024. In case, the applicant is released on bail, he will not misuse the liberty of bail.
Arguments on Behalf of Informant/State:
14. The bail application has been opposed but the fact that there is no criminal history of the applicant has not been disputed.
Conclusion:
15. In light of the judgement of the Supreme Court passed in Niranjan Singh and another vs. Prabhakar Rajaram Kharote and others AIR 1980 SC 785 this Court has avoided detailed examination of the evidence and elaborate documentation of the merits of the case as no party should have the impression that his case has been prejudiced. A prima facie satisfaction of case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.
16. The well-known principle of “Presumption of Innocence Unless Proven Guilty,” gives rise to the concept of bail as a rule and imprisonment as an exception.
17. A person’s right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because the person is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one’s life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. The said principle has been recapitulated by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and Ors., 2022 INSC 690.
18. Reiterating the aforesaid view the Sup
Bail is not to be withheld as a punishment – No one’s life or personal liberty may be taken away unless procedure established by law is followed and procedure must be just and reasonable.
The presumption of innocence and right to liberty under Article 21 mandates that bail should be granted unless there are compelling reasons to deny it, especially in cases lacking substantial evidenc....
(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 ....
The court emphasized that the presumption of innocence applies, and bail should be granted unless exceptional circumstances warrant denial, particularly in cases involving misrepresentation of a vict....
Accurate medical age determination is essential in POCSO cases to prevent misuse and ensure justice, impacting bail decisions significantly.
The court emphasized that a prima facie case for bail does not require exhaustive examination of merits, allowing for a margin of error in age assessment based on ossification tests.
The main legal point established was that when educational records exist to determine a minor's age, an ossification test is not necessary, and false assertions can lead to adverse consequences.
The principle of 'Presumption of Innocence Unless Proven Guilty' supports bail as a rule, emphasizing the right to liberty under Article 21 of the Constitution.
The court emphasized the necessity of accurate age determination in POCSO cases, requiring reasoned medical reports and adherence to statutory provisions for bail applications.
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