The Allahabad High Court, while granting bail to a POCSO accused expressed concerns over the misuse of the act and stated that while dealing with such cases, the challenge lies in distinguishing between genuine cases of exploitation and those involving consensual relationships, and this requires a nuanced approach and careful judicial consideration to ensure that justice is served appropriately.
Brief Facts:
The present bail application was filed by the petitioner, accused under Sections 363, 366, 376 I.P.C. and 5(J)2/6 POCSO Act on the allegations of enticing away the informant's minor daughter in June 2023.
Contentions of the Appellant:
The learned counsel appearing on behalf of the applicant submitted that the applicant is absolutely innocent and has been falsely implicated in the present case. The FIR is delayed by about four days and there is no proper explanation of the said delay caused. The victim is a consenting party which is but evident from her statement recorded under Section 164 Cr.P.C. and as per her own statement she was 18 years old. It was further submitted that the victim and applicant were madly in love with each other and out of fear of their parents had eloped and solemnised their marriage at a temple which is not registered.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent opposed the bail application but has not disputed the fact that out of the said union of the couple, a baby girl was born and she is more than four months old at present, who is being taken care of by the parents of the victim, although he has not disputed the fact that the applicant has no criminal history.
Observations of the court:
The court noted that the age of the victim is 18 years as per the ossification test report and further referred to the decisions in the case of Mala vs. State of J & K and Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), wherein the court observed that the radiologist cannot predict the correct date of birth rather there is a long margin of 1 to 2 years on either side.
Further, the court expressed concern regarding the application of the Protection of Children from Sexual Offences (POCSO) Act on adolescents and stated that while the Act's primary objective is to protect children under the age of majority (18) from sexual exploitation, there are cases where it has been misused, particularly in consensual romantic relationships between teenage persons. Further, the court elaborated upon the following factors which should be considered by the Court while dealing with such cases:
A. Assess the Context: Each case should be evaluated on its individual facts and circumstances. The nature of the relationship and the intentions of both parties should be carefully examined.
B. Consider Victim's Statement: The statement of the alleged victim should be given due consideration. If the relationship is consensual and based on mutual affection, this should be factored into decisions regarding bail and prosecution.
C. Avoid Perversity of Justice: Ignoring the consensual nature of a relationship can lead to unjust outcomes, such as wrongful imprisonment. The judicial system should aim to balance the protection of minors with the recognition of their autonomy in certain contexts. Here age comes out to be an important factor.
D. Judicial Discretion: Courts should use their discretion wisely, ensuring that the application of POCSO does not inadvertently harm the very individuals it is meant to protect.
Further the court stated that it is a settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State.
The decision of the Court:
The court granted bail to the accused on the condition of depositing Rs.2,00,000/ in the name of the victim's newborn child until she attains the age of majority.
Case Title: Satish Alias Chand vs State of U.P. and Ors.
Coram: Hon’ble Mr. Justice Krishan Pahal
Case No.: CRIMINAL MISC. BAIL APPLICATION No. - 18596 of 2024
Advocate for the Petitioner: Manvendra Kumar
Advocate for the Respondent: G.A.
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