Allahabad High Court grants bail to POCSO accused


The Allahabad High Court allowed the bail application of a man accused of raping a minor while observing the procedure for determining a victim’s age provided in Section 94 of the JJ Act, 2015 read with JJ Rules, 2016 shall not apply to bail applications.

A single-judge bench of Justice Ajay Bhanot passed this order while hearing a criminal misc bail application filed by Monish.

The applicant prayed to be enlarged on bail in case at Police Station Majhola, District Moradabad, under Sections 376, 506 IPC and Sections 3/4 POCSO Act and Sections 3(2)(v), 3(2) (va), 3(1)(2) of SC/ST Act.

The applicant is on interim bail granted by the Court on 01.04.2022.

The prosecution case is that the applicant committed inappropriate sexual acts with the minor victim.

SP Tiwari, the counsel for the juvenile, made the following submissions:

(i) A false date of birth was recorded in the school registers by the parents of the victim to give her an advantage in life.

(ii) Various documents like Pariwar Register and Aadhaar card which reflect her true age and contradict the prosecution case have not been produced.

(iii) The pathological report reflects that the victim is 17.

(iv) The victim is in fact a major. However, no medical examination to determine her age as per the latest scientific criteria and medical protocol was done by expert doctors as it would falsify the prosecution case.

(v) Inconsistencies in the age of the victim as stated in the FIR, the statement of the victim under Section 161 CrPC, Section 164 CrPC, school certificate and the age in the pathological report discredit the prosecution case regarding the victim’s minority.

Rishi Chaddha, Additional Government Advocate for the State, contended that Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 20151 contemplates that the age depicted in the documents enumerated therein is conclusive and the same cannot be put to challenge in bail proceedings.

Further, the offence is disclosed in the FIR which alone is sufficient to trigger the presumption of guilt under Section 29 of the POCSO Act, 2012.

The AGA's submissions were:

(i) POCSO Act is a special Act where the legislature has made stringent provisions to protect the interests of victims who are minors.

(ii) Section 94 of the JJ Act, 2015 shall be strictly interpreted and applied at the bail stage to implement the intent of the legislature.

(iii) The presumption of Section 29 of the POCSO Act, 2012 is triggered at the lodgement of the FIR otherwise its purpose will be defeated.

(iv) The legislative intent was clearly to restrict the right of bail considering the gravity of the offences.

The Court said clearly courts do not resist introduction of evidence beyond the documents enumerated in Section 94 of the JJ Act, 2015 to arrive at the truth and to serve justice the facts and circumstances of a case so require.The controversy has to be seen from another perspective as well. Section 94 of the J.J Act, 2015 creates a hierarchy of documents which corresponds to the degree of reliability. From a bare reading, the provision envisages that where a document higher in the said pecking order is available, the documents lower in the statutory preference shall not be received in evidence.

Such an embargo on receiving evidence is made on the foot of the concept of presumption of facts. In the context of the JJ Act, 2015, it means that when a document higher on the preferential scale of Section 94 of the J.J Act, 2015 is produced, it is presumed to be correct and sufficient to establish the age of the victim. Thus the need for any other evidence is obviated and reception of further evidence is proscribed.

Section 94 of the JJ Act, 2015 was devised for juveniles in conflict with law but it is also applied to determine the age of child victims of sexual offences committed by adult accused. While determining a POCSO victim’s age under Section 94 of the JJ Act, 2015, it has to be acknowledged that there is a difference in the claim of juvenility raised by the accused, and the claim of minority of a victim set up by the prosecution.

Interpretation of the provisions of Section 94 of the JJ Act, 2015 read with Rule 54(18)(iv) of the JJ Rules, 2016 has to be made in a manner that it does not lead to miscarriage of justice for adult offenders accused under the POCSO Act. Section 94 of the JJ Act, 2015, abridges the age determination procedure to benefit juvenile offenders, but its purpose is not to undermine the rights of adult accused.

Section 94 of the JJ Act, 2015 does not lighten the burden of the prosecution to prove primary facts by adducing evidence which reaches the standard of “beyond reasonable doubt”. The primary facts to trigger the presumption in the context of the age of a victim are the age related documents mentioned in Section 94 of the J J Act, 2015.

Once the said documents are proved “beyond reasonable doubt” the prosecution may invoke the presumption of correctness of age recorded therein and contest introduction of further evidence. However, even at that stage the court may of its own volition or at the instance of the accused decline such a plea and receive additional evidence to seek out true facts and serve justice. The courts also have an obligation to ensure that best evidence is produced at the trial.

The Court further said that,

Rights of an accused to assail the prosecution evidence relating to the age of the victim or to adduce further evidence to rebut the prosecution case cannot be infringed.

The Court while examining a bail application has to balance and reconcile diverse objectives, namely, the imperative of constitutional liberties of an accused, the necessity of bringing an offender to fair and speedy justice, and the mandate of upholding the law. In POCSO cases the victim has a statutory right to be heard.

Bail under POCSO Act offences have to be considered under Section 439 CrPC and in accordance with the settled parameters of grant of bail which include nature and gravity of the offences, and the likelihood of an accused having committed the offence. The possibility of the accused reoffending, influencing witnesses and tampering with evidence or being a flight risk are also relevant factors to be considered while deciding a bail application.

In POCSO Act related offences the age of a victim is a critical factor which will influence the decision to grant bail.

No provisions circumscribing the right of bail can be distilled from the scheme of POCSO Act. The existing norms of bail jurisprudence are sufficient to effectively implement the POCSO Act and to serve justice. Of course, the threshold of satisfaction of the Court while granting bail may vary in the facts and circumstances of each case.

The Court observed that,

The following arguments made by SP Tiwari, counsel on behalf of the applicant, which could not be satisfactorily refuted by Rishi Chaddha, AGA from the record, entitle the applicant for grant of bail:

(i) The prosecution case set out in the FIR states that the age of the victim is 15 years.

(ii) The victim in her statement under Section 161 CrPC has stated that she is 16 years of age. As per the transfer certificate issued by the school her age is 13 years and 3 months.

(iii) There are material inconsistencies in the age related evidence relied on by the prosecution which discredits the prosecution case.

(iv) The victim has been falsely shown as minor only to aggravate the offence and cause the imprisonment of the applicant under the stringent provisions of the POCSO Act.

(v) The victim is in fact a major. Medical examination to determine the correct age of the victim as per the latest scientific and medical protocol by eminent doctors from a reputed institution was not done as it would falsify the prosecution case.

(vi) The applicant and the victim were intimate.

(vii) The FIR is a result of an opposition of the victim's parents to her relationship with the applicant.

(viii) The statement of the victim is tutored and made at the behest of her parents only to deflect attention from the conduct of the victim and to save the failing prosecution.

(ix) No medical evidence corroborates forceful assault.

(x) There is no evidence of forceful entry in the house of the victim. The victim was at a consenting party.

(xi) The applicant does not have any criminal history apart from the instant case.

(xii) The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to cooperate with the court 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 ordered that,

Let the applicant Monish 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 be 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.