SL.

No

Date

Office Notes, reports,

orders or proceedings or

directions and Registrar’s

order with Signatures

COURT’S OR JUDGES’S ORDERS

BA1 No. 1508 of 2022

Hon’ble Sharad Kumar Sharma, J.

Mr. Susheel Kumar, Advocate for the applicant.

Mr. Pankaj Joshi, Brief Holder for the State.

The present applicant is shown to be an accused

for the commission of offences under sections 363 of

IPC, which was initially registered against him by way

of an FIR No. 107 of 2022, registered at P.S. Khatima,

District Udham Singh Nagar. It was later on that the

offences under Section 366, 376 of IPC, as well as

section 3/4 of the POCSO Act was added.

The applicant submitted that the victim and the

and the applicant, they had a very cordial friendly

relationship, which has developed amongst themselves

as a result of their getting into contact, on a social

media platform i.e. at instagram and later on, she

developed an intimacy too with the applicant and it is

not only that the applicant who has placed the

documents on records, of the present bail application

further shows that, in fact, there had been a consistent

intimate messages which were exchanged between the

victim and the present applicant, which shows that they

had an intimate relationship for last couple of months,

since when they got into contact through social media.

It is not even that if the initial statement made by the

victim is taken into consideration, she herself has stated

that she had called the applicant. She had moved around

with him to Haldwani and later on, she had also

voluntarily travelled, with the applicant to other places.

Though, apparently it seems to be a very heinous

offence, but, the surrounding set of offences are the

documents, which had been brought on record, though

the victim is a minor of 15 years of age, but, it cannot

be ruled out that she is not such a minor, who could not

understand her well being and when as per the

communication which has been brought on record,

which establishes an intimate relationship and owing to

her initial statement made, though, it may not be read in

evidence as such, but, for the purposes of considering

the bail application, this Court is of the view that the

applicant cannot be exclusively made liable for the

commission of offences, as it has been levelled against

him.

In opposition to the bail application, the learned

Government Advocate submitted that as per the date of

birth recorded of the victim in her high school

certificate, she has been shown to have born on

22.07.2007, as such, on the date of the incident, she was

a minor and hence her consent will not be taken as to be

a voluntary consent even if she had voluntarily moved

around with the applicant to different places as would

be apparent from the records.

The stage has reached now, that owing to the

social developments, which has taken place with the

passage of time and owing to the exposures given to the

persons due to their level of interaction being increased

due to the social media platform which is now readily

available to them and if an intimacy is voluntarily

developed by a victim who is of 15 years of age, this

Court is of the view that an exception has to be carved

out, where though the victim is marginally minor as per

the statute, which determines the minority. The aspect

of minority has to be understood in the context of a

capability of the victim to understand her wellbeing too.

There cannot be a common yardstick that could be

invariably applied in all the cases where the minor has

eloped with a boy with her consent. She can take a

benefit of minority when the bail application is

considered and particularly in the instant case as

already discussed above, the details of the whatsapp

messages, her own statement which is contradictory, to

the statement which was recorded before the Magistrate

concerned, it shows her willingness to move around

with the b