Allahabad High Court

Mohammad Saif vs State Of U.P. And 3 Others on 22 May, 2024

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:92134
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17800 of 2024
 

 
Applicant :- Mohammad Saif
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Shailendra Kumar Rai
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. This is the second bail application. First was rejected by a reasoned order dated 28.3.2023 and relevant part thereof is reproduced hereinafter:

" In the present case, prima facie it is not under dispute that victim is a minor girl and that in her statement recorded under Sections 161 and 164 Cr.P.C., she has stated that on her own sweet will, she ran away with applicant and they got married and lived as husband-wife and he entered into physical relationship with her consent. Now, Court will proceed to consider the submission of counsel for applicant in regard to victim's consent.

The argument of learned counsel for applicant that since victim has given consent, therefore, it will not violate the provisions of POCSO Act. In this regard, it will apt to mention the object of POCSO Act :-

"An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.

WHEREAS clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children;

AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child;

AND WHEREAS it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;

AND WHEREAS it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child;

AND WHEREAS the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent-

(a)the inducement or coercion of a child to engage in any unlawful sexual activity;

(b)the exploitative use of children in prostitution or other unlawful sexual practices;

(c)the exploitative use of children in pornographic performances and materials;

AND WHEREAS sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed."

The definitions are provided under Section 2 of POCSO Act and Section 2(d) has defined a child which means any person below the age of 18 years and since in the present case, the victim is less than 18 years, therefore she is a child under POCSO Act and POCSO Act takes care of many situations wherein a child may be subjected to sexual assault.

The POCSO Act deals with number of situations in regard to sexual offence against children. The relevant factor such as penetrated sexual assault as well as aggravated penetrated sexual assault depends on nature of sexual assault, therefore, submission of learned counsel for applicant that in a case, if there is a consent of minor, no offence would be made under POCSO Act is legally unsustainable.

The Supreme Court in a recent case of X(Minor) Vs. The State of Jharkhand and Anr. in Criminal Appeal No. 263 of 2022 dated 21.02.2022 has dealt with situation as similar to present case and has considered the averment in regard to love-affair and relevant paragraph No.6 is reproduced hereinafter :-

"6. The High Court was manifestly in error in allowing the application for bail. The reason that from the statement under Section 164 and the averments in the FIR, it appears that "there was a love affair" between the appellant and the second respondent and that the case was instituted on the refusal of the second respondent to marry the appellant, is specious. Once, prima facie, it appears from the material before the Court that the appellant was barely thirteen years of age on the date when the alleged offence took place, both the grounds, namely that "there was a love affair" between the appellant and the second respondent as well as the alleged refusal to marry, are circumstances which will have no bearing on the grant of bail. Having regard to the age of the prosecutrix and the nature and gravity of the crime, no case for the grant of bail was established. The order of the High Court granting bail has to be interfered with since the circumstances which prevailed with the High Court are extraneous in view of the age of the prosecutrix, having regard to the provisions of Section 376 of IPC and Section 6 of POCSO."

It would also apt to refer few paragraphs of Independent Thought Vs. Union of India and Another (2017) 10 SCC 800, wherein Supreme Court has held that :-

"188. Another aspect of the matter is that the POSCO was enacted by Parliament in the year 2012 and it came into force on 14th November, 2012. Certain amendments were made by Criminal Law Amendment Act of 2013, whereby Section 42 and Section 42A, which have been enumerated above, were added. It W.P. (C) No. 382 of 2013 Page 121 would be pertinent to note that these amendments in POCSO were brought by the same Amendment Act by which Section 375, Section 376 and other sections of IPC relating to crimes against women were amended. The definition of rape was enlarged and the punishment under Section 375 IPC was made much more severe. Section 42 of POCSO, as mentioned above, makes it clear that where an offence is punishable, both under POCSO and also under IPC, then the offender, if found guilty of such offence, is liable to be punished under that Act, which provides for more severe punishment. This is against the traditional concept of criminal jurisprudence that if two punishments are provided, then the benefit of the lower punishment should be given to the offender. The legislature knowingly introduced Section 42 of POCSO to protect the interests of the child. As the objects and reasons of the POCSO show, this Act was enacted as a special provision for protection of children, with a view to ensure that children of tender age are not abused during their childhood and youth. These children were to be protected from exploitation and given facilities to develop in a healthy manner. When a girl is married at the age of 15 years, it is not only her human right of choice, which is violated. She is also deprived of having an education; she is deprived of leading a youthful life. Early marriage and consummation of child marriage affects the health of the girl child. All these ill effects of early marriage have been recognised by the Government of India in its own documents, referred to hereinabove.

189. Section 42A of POCSO has two parts. The first part of the Section provides that the Act is in addition to and not in derogation of any other law. Therefore, the provisions of POCSO are in addition to and not above any other law. However, the second part of Section 42A provides that in case of any inconsistency between the provisions of POCSO and any other law, then it is the provisions of POCSO, which will have an overriding effect to the extent of inconsistency. POCSO defines a child to be a person below the age of 18 years. Penetrative sexual assault and aggravated penetrative sexual assault have been defined in Section 3 and Section 5 of POCSO. Provisions of Section 3 and 5 are by and large similar to Section 375 and Section 376 of IPC. Section 3 of the POCSO is identical to the opening portion of Section 375 of IPC whereas Section 5 of POCSO is similar to Section 376(2) of the IPC. Exception 2 to Section 375 of IPC, which makes sexual intercourse or acts of consensual sex of a man with his own "wife" not being under 15 years of age, not an offence, is not found in any provision of POCSO. Therefore, this is a major inconsistency between POCSO and IPC. As provided in Section 42A, in case of such an inconsistency, POCSO will prevail. Moreover, POCSO is a special Act, dealing with the children whereas IPC is the general criminal law. Therefore, POCSO will prevail over IPC and Exception 2 in so far as it relates to children, is inconsistent with POCSO."

Considering the above discussion as well as taking note of case of X(Minor) (supra) and Independent Thought(supra) and that in the present case, victim is a child according to POCSO Act, therefore, the submission that applicant and minor girl was having love-affair and physical relationship would not fall under offence of rape, cannot be accepted being a legally unsustainable argument and as such applicant who has, prima facie not denied about physical relationship with victim, committed offence under all the above referred sections and taking note that till date statement of victim has not been recorded and that the applicant is prior acquainted to victim, as such in the event bail is granted to applicant, he may try to influence the victim, therefore, no case of bail is made out. Accordingly, bail application is rejected.

Applicant will be at liberty to file a fresh bail application after statement of victim is recorded before learned trial court and for that learned trial court is directed to record the statement of victim expeditiously, preferably within a period of three months from today."

2. Heard Sri Shailendra Kumar Rai, learned counsel for the applicant and Sri O.P.Mishra, learned A.G.A.

3. Applicant has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. in Case Crime No.105 of 2022 under Sections 363, 366, 376 I.P.C. and 5/6 of POCSO Act, Police Station- Bhudkuda, District-Ghazipur.

4. In pursuance of an order passed by this Court learned Trial Court has submitted a status report that out of proposed 12 prosecution witnesses, two have already been examined including the victim and trial could be concluded within a period of six months.

5. At this stage, learned counsel for the applicant submits that after 16.2.2023 according to his instructions, no other witness was examined.

6. Learned counsel for the applicant refers the statement of victim recorded during trial wherein she has stated that she went along with the applicant on her on will, got married and entered into physical relationship. He further submits that on the basis of radiological report, age of the victim was opined to be about 18 years, whereas there is no denial that on the basis of educational documents age of the victim was about 16 years.

7. Learned counsel for applicant submits that applicant is in jail since 29.6.2022 i.e. just less than two years and there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.

8. Aforesaid submissions are opposed by learned A.G.A.

9. Aforesaid issue has been considered by Supreme Court in State of M.P. Vs. Anoop Singh (2015) 7 SCC 773, Mukarrab and others Vs. State of U.P., (2017) 2 SCC 210 and Ram Vijay Singh Vs. State of U.P. 2021 SCC Online SC 142.

10. In the aforesaid circumstances it cannot be stated that victim is not a minor girl and her consent, if any, is immaterial and so far as consensual relationship is concerned, Court takes note of a judgment passed by this Court in Ajay Diwakar Vs. State of U.P. & Ors, Criminal Misc. Bail Application No.1778 of 2023, decided on 3.5.2023, along with connected matters and its para 25 (vi) being relevant is mentioned hereinafter:

"25. (i)x x x

(ii) x x x

(iii) x x x

(iv) x x x

(v) x x x

(vi) If there is a statement of victim that either they have solemnized marriage or stayed as husband and wife, then there will be a presumption that during stay they have physical relationship except where victim has specifically denied any physical relationship and since consent of minor victim is immaterial, therefore, offence of rape can be made out."

11. In the aforesaid circumstances, this second bail application is rejected. However, considering that applicant is in jail for just less than two years and ten prosecution witnesses are still to be examined, therefore, learned Trial Court is directed to take all endeavour to conclude the trial preferably within a period of six months as proposed in the status report and in case trial is not concluded within the aforesaid period or has not substantially proceeded, applicant will be at liberty to approach this Court or learned Trial Court as advised along with status of trial.

12. Registrar (Compliance) to take steps.

Order Date :- 22.5.2024