Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 1156

IN THE HIGH COURT AT CALCUTTA, CIRCUIT BENCH AT JALPAIGURI
Harish Tandon, Biswaroop Chowdhury, JJ.
Bishnu Kirtoniya @ Kirtonia – Petitioner
Versus
The State of West Bengal – Respondent
CRM (DB) 433 of 2023
Decided On : 11-08-2023

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Jaydeep Kanta Bhowmik, Adv., Mr. Dipankar Deb, Adv., Mr. Sayantan Bhowmik, Adv., Ms. Rikta Sarkar, Adv.
For the Respondent: Mr. Aditi Shankar Chakraborty, Ld. APP, Mr. Ujjal Luksom, Adv., Mr. Sagnik Sankar Sikdar, Adv.

Bail is the rule and jail is the exception. The court has discretion to refuse bail when the offence is severe, the evidence is strong, and there is a risk of absconding or tampering with evidence. Cases involving consensual relationships between adolescents should not be treated as offences under the POCSO Act.

Headnote:
Indian Penal Code - Sections 363, 365, 34: The petitioner was charged under these sections based on the complaint of the victim girl's father. These sections deal with kidnapping and abduction. Protection of Children from Sexual Offences Act 2012 - Section 6: This section was added to the case against the petitioner. It pertains to punishment for aggravated penetrative sexual assault on a child.
Fact of the Case:
The petitioner filed an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is in custody in connection with a case under Sections 363/365/34 of the Indian Penal Code read with Section 6 of the Protection of Children from Sexual Offences Act 2012. The petitioner argues that there is no evidence to support the complainant's claim and that he has been in custody for a long period without any progress in the case. The petitioner also claims that the alleged victim had a romantic relationship with him, but her father was against it.
Finding of the Court:
The court examines the case diary and finds that the petitioner was charged under Section 363 and 365 of the Indian Penal Code based on the complaint of the victim girl's father. Later, Section 4/6 of the POCSO Act 2012 was added. The victim girl's statement under Section 164 CrPC reveals that she had a romantic relationship with the petitioner and lived with him for three months. The victim girl's father knew about the relationship but did not consent to their marriage due to her being a minor. Although the victim girl mentioned a physical relationship with the petitioner, she refused to undergo a medical test. The court concludes that the petitioner's act of residing with the victim girl was not sudden but the result of a romantic relationship known to the parents. The court considers this case to be different from typical POCSO cases due to the nature of the relationship.
Ratio Decidendi: The court refers to a judgment of the Madras High Court which recognizes that cases involving teenagers and young adults in romantic relationships should not be treated as offences under the POCSO Act. The court emphasizes that the objective of the POCSO Act is to protect children from sexual assault, harassment, and pornography, and not to criminalize consensual relationships between adolescents. The court calls for necessary amendments to the Act to address such cases involving adolescents in relationships.
Result: The court denies bail to the petitioner at this stage but allows him to apply for bail after the completion of the victim girl's evidence. The court emphasizes that bail is the rule and jail is the exception, but in cases where the punishment is severe, the evidence is strong, and there is a risk of absconding or tampering with evidence, bail may be refused. The court advises the petitioner to make a bail application before the trial judge after the completion of the victim girl's evidence.

JUDGMENT :

Biswaroop Chowdhury, J.

1. This is an application under Section 439 of the Code of Criminal Procedure filed by the petitioner who is in custody from 07/10/2022 in connection with Mekhliganj P.S. Case No – 333 of 2022 dated 06.10.2022 under Sections 363/365/34 of the Indian Penal Code read with Section 6 of the Protection of Children from Sexual Offences Act 2012.

2. It is the contention of the petitioner that there is no iota of evidence to corroborate impugned claim of the defacto complainant. It is further contended that he is in custody for a protracted period as an under trial prisoner and without any contribution from his end and in this case charge sheet has been filed and there is no possibility of immediate conclusion of the case. It is also contended that the alleged Victim Girl had romantic relationship but the father of the said Victim Girl was against the said relationship.

3. Learned Advocate appearing for the state objects the grant of bail. Heard Learned Advocate for the petitioner and Learned Advocate appearing for the state perused the petition filed and materials in the case diary.

4. Upon perusing the materials in the case diary it appears that the case was instituted against the petitioner under Section 363 and 365 of the Indian Penal Code on the complaint of the father of the Victim Girl. Subsequently Section 4/6 of POCSO Act 2012 was added. Upon further perusal of the statement made under Section 164 CrPC by the Victim Girl it will appear that there was love affairs between the petitioner and the victim girl and the victim girl left with the petitioner, and resided with him for a period of 3 months. It will further appear that the defacto complainant, father of the victim girl knew about the love affairs but did not consent the marriage of the victim girl with the petitioner as the victim girl was a minor. Although the victim girl stated about physical relationship with the petitioner but she refused to undergo medical test. Thus from the materials in the case diary it will appear that the act of the petitioner of residing with the victim girl is not all on a sudden but as a result of love affairs between the petitioner and the victim girl for last six months prior to lodging complaint and it was within the knowledge of the parents of the victim girl. As the matter involves romantic relationship not similar to other cases of POCSO it should be measured slightly on a different scale on the basis of a judicial decision which is discussed below.

5. In the case of Vijayalakshmi Vs. State being CrI.O.P. No. 232 of 2021 and CrI MP No. 109 of 2021 the Hon’ble Madras High Court observed as follows:

“12. ‘As rightly recognized by the Learned Single Judge of this Court in Sabari’s Case (cited supra), incidences where teenagers and young adults fall victim to offences under the POCSO Act being slapped against them without understanding the 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 the POCSO Act would show that the Act was brought into force to protect children from offences of sexual assault, sexual harassment and pornography, pursuant to Article 15 of the Constitution of India, 1950 and the Convention on the Rights of the Child. However, a large array of cases filed under the POCSO ACT seems to be those arising on the basis of complaints registered by the families of adolescents and teenagers who are involved in romantic relationships with each other. The scheme of the Act clearly shows that it did not intend to bring within its scope or ambit, cases of the nature where adolescents or teenagers involved in romantic relationships are concerned.”

6. The Hon’ble Court further observed as follows:

18. ‘In the present case, the 2nd Petitioner who was in a relationship with the 2nd Respondent who is also in his early twenties, has clearly stated that she was the one who insisted that the 2nd Re

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