Consensual romantic relationships between individuals who are close to the age of majority should not be criminalized under POCSO Act.

Court No. - 77

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1331

of 2023

Applicant :- Vikas Kumar Gupta

Opposite Party :- State Of U.P. And 3 Others

Counsel for Applicant :- Rahul Singh

Counsel for Opposite Party :- G.A.,Anil Kumar

Hon'ble Mrs. Manju Rani Chauhan,J.

Heard Mr. Rahul Singh, learned counsel for the applicant, Mr.

Anil Kumar, learned counsel for the opposite party no.2, Mr.

Pankaj Srivastava, learned A.G.A. for the State and perused the

record of the present bail application.

The present bail application has been filed by the applicant–

Vikas Kumar Gupta with a prayer to enlarge him on bail in

Case Crime No.383 of 2022, under Sections 363, 366, 376(2) of

I.P.C. and Section 6 of POCSO Act and Section 3(2)5A, 3(2)5

of SC/ST Act, Police Station-Sumerpur, District-Hamirpur,

during pendency of trial.

As per the prosecution case, an FIR was lodged under Sections

363, 366 IPC by mother of the victim against the applicant and

two others through an application U/s 156(3) Cr.P.C. with the

allegations that her 16 years old daughter was enticed away by

the applicant.

Learned counsel for the applicant submits that applicant is

innocent and has been falsely implicated in the present case due

to malicious intention just to harass the applicant. He further

submits that after recovery of the victim, her statements under

Sections 161 and 164 Cr.P.C. were recorded wherein she has

not stated anything negative against the applicant. He further

submits that there is nothing in the FIR as well as statements

under Sections 161 and 164 Cr.P.C. to show that offence under

Section SC/ST Act is made out against the applicant. He further

submits that in the FIR itself, her date of birth has been

mentioned as 16 years old. As per her date of birth, which is

10.08.2006, she is nearly 16 years old at the time of incident.

He further submits that from the statements of the victim under

Sections 161 and 164 Cr.P.C., the relations between the

applicant and victim is consensual. She herself refused to get

her medically examined, which also proves the consensual

relations between the two. He further submits that POCSO Act

means to protect children from sexual exploitation, not to

criminalize consensual romantic relationship as has been held in

the case of Ajay Kumar vs. State Govt. of NCT of Delhi and

another. It is next argued that the applicant has no criminal

history and there is no possibility of fleeing away from the

judicial process or tampering with the witnesses and in case, the

applicant is enlarged on bail, he shall not misuse the liberty of

bail and the applicant is languishing in jail since 25.09.2022.

Accordingly, he requests for bail.

Per contra, learned A.G.A. as well as learned counsel for the

opposite party no.2 has opposed the bail prayer of the applicant

by contending that as per her date of birth, the victim is minor

at the time of incident. However, they could not dispute the fact

that the relations between the applicant and victim is

consensual.

Considering the nature of the offence, material/evidence

brought on record, complicity of the accused, severity of

punishment, the submissions made by the learned counsel for

the parties, the Court is of the view that the applicant has made

out a case for bail. The bail application is allowed.

Let the applicant involved in aforesaid case crime be released

on bail on his furnishing a personal bond and two local sureties

each of the like amount to the satisfaction of the court

concerned, subject to the following conditions:-

(i) The applicants shall file an undertaking to the effect that he

shall not seek any adjournment on the dates fixed for evidence

when the witnesses are present in court. In case of default of

this condition, it shall be open for the trial court to treat it as

abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicants shall remain present before the trial co