Court No. - 73

Case :- CRIMINAL MISC. BAIL CANCELLATION

APPLICATION No. - 478 of 2022

Applicant :- Shri Kulveer Singh

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Suhas Subhash Mehta,Arvind Mishra

Counsel for Opposite Party :- G.A.,Raghuvansh Misra

Hon'ble Siddharth,J.

Heard Sri Rahul Gaur, Advocate holding brief of Sri Suhas

Subhash Mehta, learned counsel for the accused-applicant; Shri

Ashwani Tripathi, Advocate holding brief of Sri Raghuvansh

Misra, learned counsel for the opposite party no. 2 and learned

A.G.A for the State.

This bail cancellation application has been filed praying for

cancellation of bail granted to opposite party no. 2 vide Criminal

Misc. Bail Application No. 38584 of 2022 (Piyush Kumar vs. State

of U.P and others) vide order dated 15.09.2022 in Case Crime No.

134 of 2022, under Sections- 363, 366, 376 IPC and 3/4 POCSO

Act, Police Station- Purkaji, District- Muzaffar Nagar.

Learned counsel for the applicant has submitted that the bail has

been obtained by the opposite party no. 2 by misleading the Court

and concealing the fact that age of the victim at the time of alleged

offence was 14 years as per her high school marksheet. Court has

only considered the ossification test report and not her high school

marksheet.

Learned counsel for the opposite party no. 2 has submitted that the

victim was major from her ossification test report and even if she

was minor as per high school marksheet in her statement recorded

under Section 164 Cr.P.C., did not implicated the applicant for any

of the offences alleged. She neither alleged that offence of

abduction nor offence of rape against the applicant. She only

alleged that she went to Kullumanali with the applicant and stayed

with him for 10 days. He did not committed any offence against

her.

This court had to consider whether the implication under POCSO

Act would be justified where the victim appears of have consented

to her relationship with an accused despite being minor in the case

of Atul Mishra vs. State of U.P and 3 others in Criminal Misc.

Bail Application No. 53947 of 2021. The relevant paragraphs nos.

11 to 14 are as follows :-

" 11. As mentioned above, undisputedly on the date of incident i.e.

06.11.2019, the victim Ms. ''A' was a minor girl and her ''consent' as

contemplated u/s 375/376 I.P.C. has got no value in the eyes of law. This

seems to be conservative approach to deal and decide the instant issue and

rightly so. But as I have stated in the opening part of the order, that

applicability of any statutory penal provision is not a mathematical exposition

or theorem. It contains inherent flexibility to cope up an extraordinary

situation and to have more meaningful and larger good.

12. There can be no second thought as to the seriousness of the offence under

the POCSO Act and the object to achieve. Enactment of POCSO Act was to

effectively address the heinous crime of sexual abuse and sexual exploitation

of children. The Act was introduced to provide protection of children from the

offences of sexual assault and harassment etc. This Act also provides for

safeguarding the interest of the child at every stage of judicial process. But

this laudable object must have some genuine and inherent exceptions too. It is

imperative for the Court of law to draw thin line that demarcates the nature of

acts that should not be made to fall within the scope of this enactment. There

are certain gray areas, where the severity of the sentences provided under the

Act, rightly so be diluted keeping in view the facts of each case. If these rigors

of the enactment is pasted hastily or irresponsibly, it could lead to irreparable

damage to the reputation and future of young whose actions would have been

only innocuous and may lead to spoiling the future life of that innocent lovers

or couple who out of sheer innocence have initially developed and thereafter

established th