Court No. - 73

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2827 of 2023

Applicant :- Vishnu Urf Lavkush

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

Counsel for Applicant :- Chandra Bhan Kushwaha

Counsel for Opposite Party :- G.A.

Hon'ble Siddharth,J.

Heard learned counsel for the applicant and learned A.G.A. for the State.

Learned AGA has informed that notice on opposite party no.2 has been served

but no one has turned up to oppose this bail application.

There is allegation against the applicant of abduction of minor girl,

procurement and offence of rape apart from offence under Section 5(J)(ii) / 6

of POCSO Act.

Learned counsel for the applicant has pointed out to the statement of the

victim recorded under Section 164 Cr.P.C, wherein she has not made any

allegation of rape and abduction against the applicant.

Learned AGA has vehemently opposed the prayer for bail and has submitted

that as per school certificate she is 16 years of age. She is minor. Therefore,

the applicant is not entitled to be enlarged on bail.

After hearing rival contentions, 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, this Court has occasion to consider such an

issue. 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 that relationship, which if seen through the bioscope of these

penal provisions of Act of 2012, would fall within the realm of offence.

13. Growing incidences where teenagers and young adults fall victim of the

offences under the POCSO Act, being slapped by the penal provisions of

POCSO Act without understanding the far reaching 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

POCSO Act would show that, as mentioned, to protect the child from the

offences of sexual abuse, sexual assault and harassment, pornography,

pursuant to the Article-15 of