The Allahabad High Court has allowed the bail application of Prakash Kumar Gupta accused of enticing a minor aged about 13 years.
A single-judge bench of Justice Krishan Pahal passed this order while hearing a Criminal Misc Bail Application filed by Prakash Kumar Gupta.
Applicant seeks bail in Case 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.
The applicant is stated to have enticed away the minor daughter of the informant aged about 13 years on 16.3.2023.
The applicant is absolutely innocent and has been falsely implicated in the case with a view to cause unnecessary harassment and to victimize him. He has nothing to do with the said offence.
The FIR is delayed by one day and there is no explanation of the said delay caused.
There is no time of offence mentioned in the FIR. The victim by her appearance, seems to be major. The victim was sent for ossification test and it is learnt that her age has come out to be 19 years.
The victim is the consenting party, as is but evident from her statement recorded u/s 164 Cr.P.C., whereby she has stated that she had gone with the applicant out of her own sweet will and had established corporeal relationship with him and has shown her willingness to spend the rest of her life in the house of her in-laws.
There is no criminal history of the applicant. The applicant has been languishing in jail since 20.2.2024. In case, the applicant is released on bail, he will not misuse the liberty of bail.
The bail application has been opposed on account of the age of the victim, which was 13 years at the time of offence. The victim was minor at the time of the said offence, as such, her consent, if any, cannot be taken into consideration in the eyes of law
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.
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.
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.
The Court observed 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.
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.
The 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.
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 the victim was ignored and the accused was left to suffer behind jail.
The Court further observed 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.
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.
AGA and counsel for the informant could not bring forth any exceptional circumstances which would warrant denial of bail to the applicant.
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 AGA.
“Considering the facts and circumstances of the case, submissions made by 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 Court also observed while allowing the bail application.
The Court ordered 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.
(i) The applicant shall not tamper with evidence.
(ii) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C.
If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.