The Allahabad High Court has allowed the bail application of Aman @ Vansh accused of rape and POCSO Act.
A Single Bench of Justice Ajay Bhanot passed this order while hearing a Criminal Misc Bail Application filed by Aman @ Vansh.
By means of the bail application the applicant has prayed to be enlarged on bail in Case at Police Station-Shalimar Garden, District-Ghaziabad under Sections 363, 376 IPC and Sections 3/4 of POCSO Act. The applicant has been in jail since 05.12.2023.
The bail application of the applicant was rejected by the trial court on 21.12.2023.
The Court observed that,
The following arguments made by Vikash Chandra Tiwari, counsel on behalf of the applicant, which could not be satisfactorily refuted by Ajay Singh Yadav, counsel for the informant and Paritosh Kumar Malviya, AGA-I from the record, entitle the applicant for grant of bail:
(1) The victim was wrongly shown as a minor of 16 years in the F.I.R only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.
(2) The age of the victim set out in the prosecution case is refuted in light of the judgement of this Court in Monish Vs State of U.P and others and on the following grounds:
(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.
(ii) The age of the victim was incorrectly registered in the school records by the victim’s parents to give her an advantage in life. There is no lawful basis for the age related entry of the victim in the school records. The school records disclosing her age as 16 years and 10 months are unreliable.
(iii) The victim in her statement under Section 161 Cr.P.C has stated that she is 15 years of age respectively. The medical to determine the age of the victim was not drawn up at the time of arrest of the applicant.
The Court further observed that,
The medical of the victim was subsequently drawn up on the order passed by the Court on 12.03.2024. The medical report opines that the age of the victim is about 17 years. Two submissions are made in regard to the medical report. Firstly, the range of error in determining the age is about two years and the same should be read in favour of the applicant at this stage. Secondly, the relevant scientific parameters as per latest medical protocol which would establish the majority of the victims has been excluded from consideration in the medical report. The medical report is flawed. In fact the victim is a major.
The incident occurred on 09.11.2023 and the F.I.R was registered on 13.11.2023.
Delay of 4 days in lodgement of the F.I.R in the facts of the case is fatal to the prosecution case.
The victim and the applicant were intimate.
The F.I.R is the result of opposition of the victim’s family to the said relationship with the applicant.
The victim in her statements under Section 161 Cr.P.C and Section 164 Cr.P.C has admitted to intimacy with the applicant. She has also asserted that she eloped with the applicant to Delhi of her own volition. The victim has lastly asserted that she got married to the applicant.
No allegation of commission of rape by the applicant with the victim was made in the FIR or in the statements of the victim under Sections 161 CrPC and 164 CrPC.
The victim was never confined or bound down in any manner. The victim was present at public places. She did not raise an alarm nor did she resist the applicant. Her conduct shows that she was a consenting party.
Major inconsistencies in the statements of the victim under Sections 161 Cr.P.C and Section 164 Cr.P.C, as well as the recitals in the F.I.R discredit the prosecution case.
The victim has declined to undergo the medical examination.
The applicant does not have any criminal history apart from the case.
The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.
In the light of the preceding discussion and without making any observations on the merits of the case, the Court allowed the bail application.
The Court remarked,
The Court has consistently held that while sitting in the bail determination the High Court is not denuded of its constitutional status. The bail jurisdiction, though created under the statute, is also a constitutional jurisdiction of first importance since the most precious right of life and liberty are engaged in the process of consideration of bail. Consequently when legal issues which directly impact the life and liberty of a citizen arise during consideration of a bail application, the Court has to squarely deal with these issues.
In the case as in a large number of bail applications under the POCSO Act, issues relating to the age of the victims having serious consequences on the life and liberty of accused persons arise for consideration. The Court has been finding that in the large number of cases the age of the victim set out in the prosecution case is often at variance with the age determined by the expert medical boards in accordance with the latest medical protocols. At times there are multiple contradictions in age related documents available with the prosecution. Numerous cases of false implication and abuse of POCSO Act have also been noticed. Runaway couples of young age are criminalized in the process.
The Court found that in many instances the accused applicants have argued that medical determination of the victim’s age was not done deliberately as it would establish the majority of the victim and repudiate the prosecution case. By falsely depicting the victim as a minor the accused persons are wrongly implicated under the stringent regime of the POCSO Act only to cause their indefinite imprisonment.
Despite the statutory mandate the medical report to determine the victim’s age is not drawn up and made part of investigations in a majority of cases. Absence of medical reports determining the age of a victim came in the way of the Court dispensing equal justice. In these cases the Court has developed a practice to call for such reports. Medical Report determining the age of a POCSO Act offence is an imperative requirement of law and an absolute necessity of justice.
The Court ordered that,
Let the applicant-Aman @ Vansh be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions are imposed in the interest of justice:- (i) The applicant will not tamper with the evidence or influence any witness during the trial. (ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
In the wake of the preceding discussion, the Court issued following directions:
1. The police authorities/investigation officers shall ensure that in every POCSO Act offence a medical report determining the victim’s age shall be drawn up at the outset under Section 164A of the Criminal Procedure Code read with Section 27 of the Protection of Children from Sexual Offences Act, 2012. The report may be dispensed with if medical opinion advises against it in the interests of the victim’s health.
2. The medical report determining the age of the victim shall be created as per established procedure of law and in adherence to latest scientific parameters and medical protocol.
3. The medical report determining the age of the victim shall be submitted under Section 164-A of the Code of Criminal Procedure to the Court without delay.
4. The Director General (Health), Government of Uttar Pradesh, Lucknow shall also ensure that the doctors who comprise the Medical Board are duly trained and follow the established medical protocol and scientific parameters for determining the age of the victims in such cases. Constant research shall be done in this field to keep the reports in line with the latest scientific developments.