While mincing just absolutely no words in taking potshots at the brazen, blind and baseless misuse of Protection of Children From Sexual Offences (POCSO) Act, the Single Judge Bench of Allahabad High Court led by Hon’ble Mr Justice Krishan Pahal in a most learned, laudable, landmark, logical and latest judgment titled Prakash Kumar Gupta vs State Of UP And 3 Others in Criminal Misc. Bail Application No. - 19345 of 2024 that was pronounced just recently on 29.08.2024 has been most unequivocal in holding that POCSO Act has become a tool for exploitation and it was never meant to criminalize consensual romantic relationships between adolescents. It must also be noted that the Bench also hastened to add that the fact of consensual relationship borne out of love should be of consideration while granting bail. It also must be disclosed here that the High Court was hearing a bail application in a case for offences under Sections 363, 366, 376(3) IPC and 5L/6 Protection of Children from Sexual Offences Act in Police Station Sahatwar and District Ballia during the pendency of the trial.
We thus see that the Allahabad High Court deemed it fit to allow the bail application of Prakash Kumar Gupta who was accused of enticing the daughter of a minor aged about 13 years on 16.3.2023. The Bench found that the applicant is absolutely innocent and has been falsely implicated in the case with a view to cause unnecessary harassment and to victimize him. It was also found that he has nothing to do with the said offence.
We also see that the FIR is delayed by one day and there is no explanation of the said delay caused. The High Court said that the applicant has made out a case for bail. Accordingly, the High Court allowed the bail application. The High Court listed the matter for September 27, 2024.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Allahabad High Court comprising of Hon’ble Mr Justice Krishan Pahal sets the ball in motion by first and foremost putting forth in para 1 that:
A photocopy of the ossification test report has been placed on record filed in compliance of the order of this Court. It indicates that the age of the victim is about 19 years.
As we see, the Bench discloses in para 3 that:
Applicant seeks bail in Case Crime No. 61 of 2023, U/S 363, 366, 376(3) IPC and 5L/6 Protection of Children From Sexual Offences Act, Police Station Sahatwar, District Ballia, during the pendency of trial.
Do note, the Bench notes in para 12 that:
The informant deliberately reported the victim's age as 13 years, which is below the age of majority (18 years) and thus makes the case fall under the purview of the POCSO Act. This misrepresentation has led to severe legal consequences for the accused, which is his incarceration.
Quite significantly, the Bench notes in para 13 that:
The ossification test report indicates that the victim is actually 19 years old. This suggests that the victim is legally an adult and, therefore, the application of the POCSO Act may be inappropriate in this case.
Be it noted, the Bench notes in para 14 that:
Due to the false representation of the victim’s age, the applicant has been incarcerated since 20.02.2024 which is a substantial period of more than 6 months. This wrongful imprisonment could have serious implications for the applicant’s life, reputation, and future.
Most forthrightly, the Bench minces absolutely just no words to hold indubitably in para 15 that:
The POCSO Act is designed to protect minors, but in this case, it appears to have been misused due to the false information provided by the informant. This misuse not only harms the applicant but also undermines the credibility and integrity of the legal system and the POCSO Act itself.
It is worth noting that the Bench notes in para 16 that:
This situation exemplifies how the misuse of protective laws like the POCSO Act can lead to significant injustices. It underscores the need for careful verification of facts, especially in sensitive cases involving minors, to ensure that the law is applied appropriately and that justice is served for all parties involved.
Most significantly, the Bench encapsulates in para 17 what constitutes the cornerstone of this notable judgment postulating that:
POCSO Act was formulated to protect children under the age of 18 years from sexual exploitation. Nowadays more often than not it has become a tool for their exploitation. The Act was never meant to criminalise consensual romantic relationships between adolescents. However, this has to be seen from the facts and circumstances of each case.
No less significant is what is then summed up in para 18 of this remarkable judgment stating that:
The fact of consensual relationship borne out of love should be of consideration while granting bail because it would amount to perversity of justice if the statement of victim was ignored and accused was left to suffer behind jail.
While citing relevant and remarkable case laws, the Bench states in para 19 that:
In the judgement of Supreme Court passed in Jaya Mala Vs. State of J & K, (1982) 2 SCC 538 and Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), (2011) 10 SCC 192, it has been opined that the radiologist cannot predict the correct date of birth rather there is a long margin of 1 to 2 years on either side.
Needless to say, the Bench states in para 20 of this robust judgment that:
The well-known principle of Presumption of Innocence Unless Proven Guilty, gives rise to the concept of bail as a rule and imprisonment as an exception.
While citing a recent and relevant case law, the Bench observes in para 21 that, A person’s right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because the person is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one’s life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. The said principle has been recapitulated by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and Ors., 2022 INSC 690.
While citing yet another very recent and relevant case law, the Bench further points out in para 22 that:
Reiterating the aforesaid view the Supreme Court in the case of Manish Sisodia Vs. Directorate of Enforcement 2024 INSC 595 has again emphasised that the very well-settled principle of law that bail is not to be withheld as a punishment is not to be forgotten. It is high time that the Courts should recognize the principle that bail is a rule and jail is an exception.
It cannot be lost on us that the Bench then reveals in para 23 that:
Learned AGA and learned counsel for the informant could not bring forth any exceptional circumstances which would warrant denial of bail to the applicant.
It is a no-brainer that the Bench then lays down in para 24 that:
It is 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.
Quite naturally, the Bench then holds in para 25 that:
Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
As it turned out, the Bench then enunciates in para 26 stipulating that:
Let the applicant- Prakash Kumar Gupta involved in aforementioned case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
- The applicant shall not tamper with evidence.
- The applicant shall remain present, in person, before the Trial Court on dates fixed for:
- opening of the case,
- framing of charge, and
- recording of statement under Section 313 Cr.P.C.
It cannot be glossed over that the Bench then further stipulates in para 27 that:
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
For clarity, the Bench clarifies in para 28 stating that:
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
What’s more, the Bench directs in para 42 that:
List on 27.9.2024 in the additional cause list among top ten cases before this Court for compliance of the said order.
In addition, the Bench further directs in para 43 that:
The Registrar Compliance of this Court is directed to communicate the order passed by this Court to the C.J.M. concerned for necessary compliance within 72 hours.
Finally, the Bench then concludes by holding in para 44 that:
Learned A.G.A. is also directed to inform the respective officials for compliance of the said order.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
