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SANJAY DWIVEDI
Mohd. Ansar – Appellant
Versus
The State of Madhya Pradesh – Respondent
ORDER
1. This first bail application under section 439 of the Code of Criminal Procedure has been filed on behalf of the applicant for grant of bail in connection with Crime No.158/2022 registered at Police Station Sanoudha, District Sagar (M.P.) for the offence punishable under sections 366Ka, 376, 376(2)(N) of the Indian Penal Code and section 3/4 and 5/6 of the Protection of Children from Sexual Offences Act. The applicant is in jail since 17.5.2022.
2. As per the case of prosecution, on 27.4.2022 the cousin brother of the prosecutrix lodged a missing person report before the police stating therein that he has every doubt that the applicant not only taken away the prosecutrix but also abducted her. The police after making an enquiry, recovered the prosecutrix on 17.5.2022 from the possession of the applicant. Subsequently, the statement of prosecutrix has been recorded wherein she has stated that the applicant after giving promise of marriage, developed physical relation with her. Therefore, the offence was registered against the applicant and arrested on 17.5.2022.
3. Learned counsel for the applicant submits that the applicant and the prosecutrix were known to each other since l
Bail can be granted in cases where prosecutrix herself has exculpated accused in cases of kidnapping and rape.
The court considered the statement of the prosecutrix, completion of police investigation, and the young age of the petitioner in granting bail under Section 439 Cr.P.C.
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 – Under POCSO Act, age of victim is decisive factor – If victim is below 18 years of age, law presumes that she is incapable of giving valid consent.
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.
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