The court established that the police must obtain a medical report determining the victim's age in POCSO cases, emphasizing the mandatory nature of this requirement under the law.

JUDGMENT :

Hon'ble Ajay Bhanot, J.

1. The judgment is being structured in the following conceptual framework to facilitate the discussion:

I. Introduction:

2. The question of law which arises for consideration in this bail application is the nature of the legal duty cast on the police to draw up a medical report determining the age of a victim while investigating POCSO Act offences. The jurisdiction of this Court to determine this question will predicate the discussion on the merits of the bail.

II. Bail Jurisdiction: Scope

3. Right of bail is vested by virtue of Section 439 of Code of Criminal Procedure,1973 [hereinafter referred to as the Cr.P.C.].

4. With coming of the Constitution and development of constitutional law, the statutory domain of bails was transformed into a constitutional jurisdiction as well. The right to bail is derived from statute but cannot be removed from constitutional oversight. The right to seek bail is irretrievably embedded in the fundamental right of liberty enshrined under Article 21 of the Constitution of India by holdings of constitutional courts.

5. Good authority has long entrenched the right of an accused to seek bail in the charter of fundamental rights assured by the Constitution of India.

6. Bail jurisprudence was firmly ensconced in the constitutional regime of fundamental rights in Gudikanti Narasimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh(1978) 1 SCC 240 . Casting an enduring proposition of law in eloquent speech, V.R. Krishna Iyer, J. held:

“1. Bail or jail?” — at the pre-trial or post-conviction stage

— belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The last four words of Article 21 are the life of that human right.”

7. More recently the interplay of constitutional liberty assured under Article 21 and statutory right of bail of an undertrial prisoner was affirmed by the Supreme Court in Mohd. Muslim @ Hussain Vs. State (NCT of Delhi), Special Leave Petition (Criminal) No. 915 of 2023.

8. Engagement of fundamental rights in bail jurisprudence is a constant i