Saurabh Purohit vs State Of Uttarakhand Through
2023 Latest Caselaw 56 UK

     HIGH COURT OF UTTARAKHAND
            AT NAINITAL

     First Bail Application No. 2542 of 2022

Saurabh Purohit                                         ...   Applicant
                              Vs.
State of Uttarakhand through
District Magistrate, Pithoragarh                        ... Respondent


Advocate:     Mr. Pankaj Purohit, Advocate, with Mr. Abhilash Nainwal,
              Advocate, for the applicant.
              Mr. Ranjan Ghildiyal and Mr. Sachin Panwar, Brief Holder,
              for the State.


Hon'ble Sharad Kumar Sharma, J.

The case, as projected in the FIR, by the complainant, as against the unnamed accused person is that initially an FIR was registered under Section 365, and later on, the offence under Sections 363, 366, 376 of IPC and Section 3/4, 5/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 was also introduced.

2. In the FIR, which was registered on 01.11.2021, it was contended that the daughter of the complainant, who was at that point of time, alleged to have been of 16 years and 2 months old, who was found missing. Further, the records reveal, that the victim had stated, that she entered into a relationship with the present applicant on Face Book and they consistently maintained their relationship and later on, she also admitted, that one Mr. Ankit Bhandari, who too was working in the power project, had informed the complainant, that one girl was living in a rented house,

along with the present applicant. The fact also reveals that the victim had been travelling around with the present applicant at different places and physical relationships were also established by her with the applicant.

3. The issue would be, that as to whether at all these offences could be a reason to curtail a person's right of freedom, as envisaged under Article 21 of the Constitution of India until and unless the offence is established on the conclusion of trial.

4. So far as the attractions of the provisions contained under the POCSO Act are concerned, the S.O.R. of the said Act, uses two very important words One "protect" and second "harassment". This Court is of the view, that a protection would be at a stage when a child is abused by an accused person against her wishes; secondly, the same would be the situation of the word 'harassment'. The harassment too would have the same element, where an act is conducted against the wishes of the victim, to attract the provisions of the POCSO Act.

5. Be that as it may. At this stage, this Court is refraining itself to make any assertions on merit of the implications of the provisions of POCSO Act. But, however, this aspect had been considered by the Delhi High Court, while considering the bail application, almost on similar set of circumstances, as to what would be the parameters to be considered, where a

minor is subjected to such type of criminal offence with her consent.

6. This aspect was considered by the Madras High Court too in Crl. OP No. 232 of 2021 and following observations were made in para 11 of the judgment, which was subsequently also referred to by the Delhi High Court, as to what would be the guiding factors to be considered. The relevant part of the judgment of the Delhi High Court and the parameters given therein are extracted hereunder:-

"The Madras High Court in Crl.O.P.No.232 of 2021 and Crl.M.P.No.109 of 2021 titled Vijayalakshmi vs State, has also observed that "11. There can be no second thought as to the seriousness of offences under the POCSO Act and the object it seeks to achieve. However, it is also imperative for this Court to draw the thin line that demarcates the nature of acts that should not be made to fall within the scope of the Act, for such is the severity of the sentences provided under the Act, justifiably so, that if acted upon hastily or irresponsibly, it could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous. What came to be a law to protect and render justice to victims and survivors of child abuse, can, become a tool in the hands of certain sections of the society to abuse the process of law"

This Court in Dharmender Singh v. State (Govt. of NCT) BAIL APPL. 1559/2020, granted bail to the accused while taking into consideration the possibility of a reciprocal physical relationship between the accused and the minor victim. It has also laid down the parameters that are to be followed when considering bail of a person accused under the POCSO Act, it has held as follows

77. Though the heinousness of the offence alleged will beget the length of sentence after trial, in order to give due weightage to the intent and purpose of the Legislature in engrafting section 29 in this special statute to protect children from sexual offences, while deciding a bail plea at the post-charge stage, in addition to the nature and quality of the evidence before it, the court would also factor in certain real life considerations, illustrated below, which would tilt the balance against or in favour of the accused :

a. the age of the minor victim : the younger the victim, the more heinous the offence alleged;

b. the age of the accused : the older the accused, the more heinous the offence alleged;

c. the comparative age of the victim and the accused : the more their age difference, the more the element of perversion in the offence alleged;

d. the familial relationship, if any, between the victim and the accused : the closer such relationship, the more odious the offence alleged;

e. whether the offence alleged involved threat, intimidation, violence and/or brutality;

f. the conduct of the accused after the offence, as alleged;

g. whether the offence was repeated against the victim; or whether the accused is a repeat offender under the POCSO Act or otherwise;

h. whether the victim and the accused are so placed that the accused would have easy access to the victim, if enlarged on bail : the more the access, greater the reservation in granting bail;

i. the comparative social standing of the victim and the accused : this would give insight into whether the accused is in a dominating position to subvert the trial;

j. whether the offence alleged was perpetrated when the victim and the accused were at an age of innocence : an innocent, though unholy, physical alliance may be looked at with less severity;

k. whether it appears there was tacit approval-in- fact, though not consent-in-law, for the offence alleged;

l. whether the offence alleged was committed alone or along with other persons, acting in a group or otherwise;

m. other similar real-life considerations. The above factors are some cardinal considerations, though far from exhaustive, that would guide the court in assessing the egregiousness of the offence alleged; and in deciding which way the balance would tilt. At the end of the day however, considering the myriad facets and nuances of real-life situations, it is impossible to cast in stone all considerations for grant or refusal of bail in light of section 29. The grant or denial of bail will remain, as always, in the subjective satisfaction of a court; except that in view of section 29, when a bail plea is being considered after charges have been framed, the above additional factors should be considered."

7. Under the similar set of circumstances and for the same nature of offences, the Bombay High Court too, has considered, as to what would be the modalities to

consider the bail application, where a minor voluntarily joins the company of the applicant, who is a major due to an affectionate relationship, which they have gradually matured due to infatuation. The relevant part of the Bombay High Court judgment para 6 is extracted hereunder:-

"6. Taking an overall view of the material compiled in the charge-sheet, it appears that the applicant though minor, was capable of understanding the consequences of her act and she voluntarily accompanied the applicant to her aunt's place. Though she is a minor and her consent become immaterial, in a case like this, where she voluntarily joined the company of the applicant, and she had categorically admitted that she was in love with the applicant, whether that she consented for the sexual intercourse or not, is the matter of evidence. Till what point of time, she accompanied the applicant and whether she resisted the actual physical indulgence, when according to her, the applicant forcibly committed sexual intercourse with her against her wishes, will have to be determined. In any case, the prosecutrix/victim kept quiet till her Whatsapp chat with the applicant was objected to, by the family members and then she narrated the incident which was alleged to have taken place on 6/4/2020. The time gap between these two events is also crucial as it was always open for the prosecutrix to disclose the aunt about the forcible act if it was committed in her house, but she continued to remain silent and disclosed the incident only when an objection was taken for she establishing contact with the applicant.

8. Owing to the aforesaid fact, that since the victim has voluntarily established a relationship with the present applicant and the aspect stands covered by the ratios, laid down by the aforesaid judgments, the applicant is entitled to be released on bail.

9. Accordingly, the Bail Application would stand allowed.

10. The applicant is directed to be released on bail, subject to executing his personal bond and furnishing of two sureties, each of the like amount, to the satisfaction of the Magistrate concerned.

11. However, it is made clear that whatsoever observation, which has been made by this Court while granting bail to the present applicant, is only tentative in nature, exclusively for the purposes of considering the bail application. It will not prejudice the trial, which has to be decided independently.

(Sharad Kumar Sharma, J.) 05.01.2023 Mahinder/