Gujarat High Court
Devipoojak Mukeshkumar Kanjibhai vs State Of Gujarat on 23 August, 2021
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 866 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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DEVIPOOJAK MUKESHKUMAR KANJIBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK B BAROT(3711) for the Appellant(s) No. 1
NOTICE SERVED THRU CONCERNED POLICE STN for the
Opponent(s)/Respondent(s) No. 2
MR.J.K.SHAH, APP (2) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 23/08/2021
ORAL JUDGMENT
[1] By way of present Criminal Appeal under Section 14(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the appellant -
Page 1 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 accused has prayed for setting aside the impugned order passed by the learned 7 th Additional Sessions Judge and Special Judge (POCSO), Mehsana in Criminal Misc. Application No.628 of 2021 and as a consequence thereof prayed for released on regular bail in connection with FIR being C.R.No.I-99 of 2018 registered with Kheralu Police Station, District-Mehsana for the punishable under Sections 363, 366 and 376(2)(n) of the Indian Penal Code, Sections 4, 5(1), 6 and 8 of the Protection of Children from Sexual Offences Act, 2012 and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
[2] The background of case is that the father of the victim, who is the original complainant, has alleged that the daughter, aged about 14 years, as mentioned in the FIR, was induced by the present appellant and thereby, committed an offence. It is asserted in the complaint that while respondent No.2 whose family was sleeping in the house around 10.00 PM in the night, respondent No.2 and his wife had gone in the field of Chaudhary Narsinhbhai for cultivating the land leaving behind his son and the victim in the house and at around 5.00 AM in the morning, when respondent No.2 and his wife returned back to their house, complainant's daughter was found missing and upon on inquiry from the adjoining field, it was revealed that his daughter, aged about 14 years, has left home in the company of present appellant, who used to come for Page 2 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 agriculture labour work in the field of Chaudhary Jayantibhai Bhimrajbhai and upon further inquiry, it was also revealed that present appellant has also vacated the house without informing anyone even in his family as well and as a result of which, a complaint came to be lodged before Kheralu Police Station, District-Mehsana being C.R.No.I-99 of 2018 for the offences punishable under Sections 363, 366 and 376(2)(n) of the Indian Penal Code, Sections 4, 5(1), 6 and 8 of the Protection of Children from Sexual Offences Act, 2012 and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In this connection, pursuant to the appellant's arrest, a regular bail application was preferred but having not considered on previous occasion Criminal Appeal No.477 of 2021 was filed before this Court, which also came to be withdrawn on 22.04.2021, at that stage, with a liberty since charge-sheet was not filed.
[3] The appellant has stated that after filing of the charge-sheet, for the purpose of seeking regular bail, an application being Criminal Misc. Application No.628 of 2021 was filed, which came to be rejected vide order dated 07.06.2021. The appellant as such is constrained to approach this Court by way of present Criminal Appeal under Section 14(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. On 01.07.2021, the co-ordinate Bench of this Court was pleased to issue notice after admission of Criminal Appeal Page 3 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 and later on after adjourning from time to time, it has came up for consideration before this Court on 09.08.2021, the Court heard the learned advocates appearing for the respective parties at length and kept the matter for orders on 23.08.2021. With this background, the present Criminal Appeal is being dealt with by the Court.
[4] Mr.Pratik B.Barot, learned advocate appearing on behalf of the appellant - accused has submitted that accused is an innocent person and on account of deep love and affection, both i.e. victim as well as the present appellant decided to eloped and as such, the attribution which has been leveled against the appellant is not correct. On the contrary with the consent of victim, the appellant eloped with her. It has been contended that now after investigation, charge-sheet has already been filed and therefore, there is no likelihood of misuse of liberty in any manner by the appellant and as such, he may be released on bail by imposing suitable conditions. Mr.Barot, learned advocate has further submitted that from the entire material of the charge-sheet what has been surfaced is that the victim is stated to be of 14 years and 11 months but to rely upon the said age of the victim, the only piece of evidence is Adhar Card and on the basis of such weak piece of evidence, at this stage, the age cannot be assumed of the victim more particularly when out of their relation, one child has also been born on Page 4 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 26.10.2019 and as such, in a situation like this to keep the appellant languishing in jail is rather injustice to him. Mr.Barot, learned advocate has also submitted that only source of information about the age of victim below 16 years is a solitary document of Adhar Card which has no evidenciary value to that effect since the manner in which the birth dates are being recorded in Adhar Card of the concerned persons. It has been stated that complainant father is also silent on the issue as to from which source, the date of birth is recorded in Adhar Card whereas the victim is also silent on her age when the police statement is recorded. Mr.Barot, learned advocate has further submitted that it may be that the offence is serious enough if this age of victim is accepted prima facie but then in the absence of any other cogent material with regard to the age, it cannot be assumed that she must be certainly below the age of the 16 years.
[4.1] Mr.Barot, learned advocate has further submitted that even certification which has been made by Talati-cum-Mantri about the age is on rough approximate estimation and again appears to have been based on Adhar Card and as such in a situation like this when there is no registration of birth of the victim in Birth Register, the entry of Adhar Card may not be treated as conclusive evidence at this stage. Mr.Barot, learned advocate by referring to his short written submissions has stated that learned court below unfortunately has believed the Page 5 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 victim's age to be of 14 years and 11 months as on date of the incident whereas while coming to this conclusion has remained completely ignorant about the fact that the appellant is also of a tender age and a child has been born out of the relationship of appellant as well as victim and as such, keeping in view the overall interest of both the side, at least bail ought to have been granted to the appellant by imposing appropriate conditions. Mr.Barot, learned advocate has referred to the relevant regulations of Adhar (Enrollment and Update) Regulation, 2016 and by referring to Regulation 10 of the said Regulation has submitted that even if the document is pertaining to proof of address or identity is not available with an individual- cum-resident, the authority will dispense with the requirement of the said document. By referring to the relevant sub Regulations of the said Regulations, it has been contended further that the particulars mentioned in the Adhar Card are not to be treated as conclusive proof more particularly when there is a provision for seeking correction in the entry made in the Adhar Card itself. Mr.Barot, learned advocate has also submitted that here in the instant case, there is no idea either to the complainant nor to the prosecution about exact date of birth of the victim and except Adhar Card entry no reliance is also placed which is visible from the charge- sheet papers and as such by referring to a decision delivered by Lucknow Bench of the High Court of judicature at Allahabad, it has been submitted that Page 6 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 position is well established that entry made in the Adhar Card is not to be treated as conclusive proof of the evidence and further it has been submitted that this decision delivered by the Lucknow Bench of the High Court of Judicature at Allahabad is based upon the decision of Hon'ble Apex Court and as such by referring to certain observations contained in the said judgment, it has been submitted that at least case is made out by the appellant to get himself released on bail.
[4.2] Mr.Barot, learned advocate in nut shell has submitted that an entry which has been made in the Adhar Card with regard to date of birth since not to be treated as conclusive proof the effect of Section 35 of the Evidence Act would come into play in the absence of any material or source of information available with the parents to indicate the date of birth and as such, in any case except this document since there is no material available with prosecution, the appellant has made out a fairly good case on merit for being released on regular bail. It is settled position of law that even if the document in question is a public document, the contents thereof are required to be proved by leading evidence and as such prima facie when there is no other material contrary to what has been provided by investigating machinery a serious doubt has arisen with regard to the age of the victim. Hence, when prima facie there is an arguable case made out by the appellant, the liberty of the appellant Page 7 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 accused may not be further curtailed by refusing relief as prayed for in the present appeal.
[5] As against this, Mr.J.K.Shah, learned APP appearing on behalf of the prosecution has submitted that if this Adhar Card to be accepted at this stage then it would be practically prejudging the issue especially when trial court is yet to adjudicate on the issue which has been raised and further there is an ample opportunity available for prosecution to lead further evidence hence, the submission made by the Mr.Barot, learned advocate appearing for the appellant may not be accepted at this stage. Mr.Shah, learned APP has submitted that even if assuming that the declaration of date of birth is erroneously recorded and reflecting in Adhar Card but then also the aggrieved party would be the person whose date of birth is recorded erroneously and hence, appellant
- accused has no right to agitate about the recording of date of birth in the Adhar Card and in any case Adhar Card is a valid piece of document which deserves to be considered at time of adjudication of the case.
[5.1] Mr.Shah, learned APP has vehemently submitted that a reference which has been made by the Lucknow Bench of the High Court of Judicature at Allahabad is a decision delivered keeping in view of situation prevailing there and as such when here the trial is yet to take place in which prosecution has got ample opportunity to lead Page 8 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 evidence, the submission may not be accepted. A bare reading of the decision of Lucknow Bench of the High Court of Judicature at Allahabad is based upon Section 482 proceedings and as such the said observations may not be applied here as a straightjacket formula since different considerations are to be applied while considering the case of appellant as to whether he deserves to be enlarged on bail or not and this proceedings are not under Section 482 of the Cr.P.C. Mr.Shah, learned APP has further submitted that learned Judge has clearly asserted that may be the charge-sheet has already been filed but then has further clearly opined that there is no other material change of circumstance and yet the deposition of victim is to be taken when that be so, it would not be in the fitness of things and in the interest of prosecution case that appellant be enlarged on bail by accepting this appeal.
[5.2] Mr.Shah, learned APP has vehemently opposed this appeal on further ground that here is the case in which the appellant has committed an offence with a victim who is aged about 14 years and 11 months and there is a specific object behind prescription of an age of a child as defined under a special statute which is to be strictly construed and hence, conjoint effect of the object of the POCSO Act coupled with the age prescription under the relevant provisions of Indian Penal Code when this age of the victim can never be stated to be a safe age Page 9 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 whereby even her consent is to be recognized and as such in this peculiar background when a heinous crime is committed by the appellant over the victim, who is of tender age, no lenient view be taken else very purpose and object of the special statute would be defeated. As such Mr.Shah, learned APP has vehemently submitted that this is not a fit case in which any liberal construction is to be applied to enlarge the appellant on bail may be that bail considerations are to be kept in mind but the seriousness of offence and the object of the special statute cannot be given a go-by. The Hon'ble Apex Court has also time and again propounded that societal interest, the object of the special statute and the seriousness of offence and the impact of such on the society are also the relevant consideration for considering as to whether accused deserves to be enlarged on bail or not. Simply because the appellant is readily available for trial is not the sole consideration for grant of bail and the other aspects as stated above are of vital importance which may not be unnoticed by the Court and as such, this being a fit case on which the appellant may not be granted any relief, as prayed for. It may be that during the passage of time, the prosecution may come out with a further evidence with regard to justification of age of the victim and as such at this stage to accept that only piece of Adhar Card is not to be considered looking to seriousness and therefore, keeping over all situation in mind, according to Mr.Shah, learned APP, this is not a fit case in Page 10 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 which any lenient view be taken.
[6] In rejoinder to this, Mr.Pratik B.Barot, learned advocate appearing for the appellant has reiterated that there is no other material piece of evidence which may justified the age as stated by the complainant and hence, keeping in view this situation prevailing on record, the appellant may be considered for grant of relief as prayed for in an appeal. No other submissions have been made.
[7] Having heard learned advocates appearing for the respective parties and having gone through the overall material on record, it clearly transpires prima facie that victim was aged about 14 years and 11 months and was taken away from guardianship of the complainant and thereby established physical relationship with minor which resulted into even a birth of a child at such a tender age. It has been clearly stated in the order in question that after filing of the charge-sheet, there is no material change of circumstance substantial in nature which would result in grant of bail to the appellant and further yet the deposition of victim to be taken during the course of trial and as such, learned Court below was of the opinion that looking to the overall circumstances, the appellant does not deserve to be enlarged on regular bail.
[8] In the aforesaid circumstances, this Court is prima facie of the opinion that there is a specific object Page 11 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 underlying in the provision which deals with an offence of rape as defined under Section 375 of the Indian Penal Code. A bare look at the said provision would make it clear that legislature with a laudable object and with a thoughtful consideration has specifically prescribed the age and here is the case on hand in which the victim's age which indisputably is stated of 14 years and 11 months prima facie, the Court cannot ignore such object behind prescription of age in the provision.
[9] Simultaneously, the legislature has thought it fit in the overall interest of society to enact a special statute known as the Protection of Children from Sexual Offences Act, 2012 and the underlying object with such special statute is well defined and prescribed which the Court would like to reproduced hereunder:
"An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.
Whereas clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children;
And whereas, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child;
And whereas it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;
And whereas it is imperative that the law operates in a manner Page 12 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child;
And whereas the State Parties to the Convention on the Right of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent-
(a)the inducement or coercion of a child to engage in any unlawful sexual activity;
(b)the exploitative use of children in prostitution or other unlawful sexual practices;
(c)the exploitative use of children in pornographic performances and materials;
And whereas sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed."
[10] A bare look of the said object of the special statute has indicated that "age of child" which is defined and prescribed under Section 2(d) is below the age of 18 years and looking to such stringent provision made under the special statute, the Court has to keep in mind the well defined object of the said statute and more specific the special statute more would be the strict interpretation thereof and as such when a specific case is alleged against the appellant about such a serious offence whereby by on account of act of appellant even a child at a tender age is constrained to deliver a baby such act is not only having an adverse social impact and is also having an impact on interest of well governed society. Such act, even if by consent, is not possible to be visualized in any liberal form and hence, seriousness of offence is not possible to be unnoticed by this Court.
Page 13 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 [11] In an elaborate judgment of a recent time delivered by the Hon'ble Apex Court in case of Independent thought versus Union of India and other reported in (2017) 10 SCC 800 wherein a detailed discussion has taken place with regard to sexual offences vis-a-vis the age of the victim. The Hon'ble Apex Court while considering explanation 2 of Section 375 of the Indian Penal Code and with respect to prescription of age, also analyzed the other legislations which are special statutes popularly known as Child Friendly Statues and while dealing with such issue related to age, the adverse effect of Child Marriage, Fundamental Rights and Articles 14, 15 and 21 of the Constitution of India and by giving harmonious and purposive interpretation, has arrived at a conclusion. In such a landmark decision, few observations contained in relevant paragraphs which are summarized in head-note, Court would like to reproduce hereunder:
"Per Lokur, J.
Section 375 Exception 2 IPC The issue before the Court in this case is limited to the question--whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? The Court is not concerned here with regard to the marital rape of a woman who is 18 years of age and above.
(Paras 1 and 2) Section 375 IPC defines "rape". This section was inserted in IPC in its present form by an amendment carried out on 3-2-2013 and it provides that a man is said to commit rape if, broadly speaking, he has sexual intercourse with a woman under circumstances falling under any of the seven descriptions mentioned in the section. Clause 'Sixthly' of Section 375 makes it clear that if the woman is under 18 years of age, then sexual intercourse with her--with or without her consent--is rape. This is commonly referred to as "statutory rape" in which the willingness or consent of a woman below the age of 18 years for having sexual Page 14 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 intercourse is rendered irrelevant and inconsequential. However, Exception 2 to Section 375 IPC provides that it is not rape if a man has sexual intercourse with a girl above 15 years of age and if that girl is his wife. In other words, a husband can have sexual intercourse with his wife provided she is not below 15 years of age and this is not rape under IPC regardless of her willingness or her consent. However, sexual intercourse with a girl under 15 years of age is rape, whether it is with or without her consent, against her will or not whether it is by her husband or anybody else. This is clear from a reading of Section 375 IPC including Exception 2. Therefore Section 375 IPC provides for three circumstances relating to "rape". Firstly, sexual intercourse with a girl below 18 years of age is rape (statutory rape). Secondly, and by way of an exception, if a woman is between 15 and 18 years of age then sexual in intercourse with her is not rape if the person having sexual intercourse with her is her husband. Her willingness or consents is irrelevamt under this circumstance. Thirdly, sexual intercourse with a woman above 18 years of age is rape if it is under any of the seven descriptions given in Section 375 IPC (non-consensual sexual intercourse). The result of the above three situations is that the husband of a girl child between 15 and 18 years of age has blanket liberty and freedom to have non-consensual sexual intercourse with his wife and he would not be punishable for rape under IPC since such non-consensual sexual intercourse is not rape for the purposes of Section 375 IPC.
(Paras 29 to 33) Other Legislations A brief survey of the various statutes viz. the Protection of Human Rights Act, 1933, the Protection of Women from Domestic Violence Act, 2005, the Prohibition of Child Marriage Act, 2006 (PCMA), the Protection of Children from Sexual Offences Act, 2012 (Pocso Act) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), reveals that a child is a person below 18 years of age who is entitled to the protection of her human rights including the right ta live with dignity; if she is unfortunately Married while a child, she is protected from domestic violence, both physical and mental, as well as from physical and sexual abuse; if she is unfortunately married while a child, her marriage is in violation of the law and therefore an offence and such a marriage is voidable at her instance and the person marrying her is committing a punishable offence; the husband of the girl child would be committing aggravated penetrative sexual assault when he has sexual intercourse with her and is thereby committing a punishable offence under the Pocso Act. A girl child placed in such circumstances is a child in need of care and protection and needs to be cared for, protected and appropriately rehabilitated or restored to society. All these "child-friendly statutes" are essential for the well-being of the girl child (whether married or not) and are protected by Article 15(3) of the Constitution. These child-friendly statutes also link child marriages and sexual intercourse with a girl child and draw attention to the adverse consequences of both. The only jarring note in this scheme of the pro-child legislations is to be found in Exception 2 to Section 375 IPC which provides that sexual intercourse with a girl child between 15 and 18 years of age is not Page 15 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 rape if the sexual intercourse is between the girl child and her husband. Therefore, the question of punishing the husband simply does not arise.
(Para 53) Adverse Effects of Child Marriage There is a strong established link between early marriage and sexual intercourse with a married girl child between 15 and 18 years of age. There is a plethora of material to clearly indicate that sexual intercourse with a girl child below the age of 18 years (even within marriage) is not at all advisable for her for a variety of reasons, including her physical and mental well-being and her social standing--all of which should ordinarily be of paramount importance to everybody, particularly the State. An early marriage and sexual intercourse at an early age could have detrimental effects on the girl child not only in terms of her physical and mental health but also in terms of her nutrition, her education, her employability and her general well-being. To make matters worse, the detrimental impact could pass on to the children of the girl child who may be malnourished and may be required to live in an impoverished state due to a variety of factors. An early marriage therefore could have an intergenerational adverse impact.
(Paras 26 and 89) Fundamental Rights Article 21 of the Constitution Article 21 of the Constitution gives a fundamental right to a girl child to live a life of dignity. An early marriage takes away the self-esteem and confidence of a girl child and subjects her, in a sense, to sexual abuse. Under no circumstances can it be said that such a girl child lives a life of dignity. The right of a girl child to maintain her bodily integrity is effectively destroyed by a traditional practice sanctified by IPC. Her husband, for the purposes of Section 375 IPC, effectively has full control over her body and can subject her to sexual intercourse without her consent or without her willingness since such an activity would not be rape.
(Para 90) The girt child has right to bodily integrity and reproductive choice. She cannot be treated as a commodity having no right to deny sexual intercourse to her husband. The human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance. However, the reproductive choices are severely curtailed as far as a married girl child is concerned. There is every possibility that being subjected to sexual intercourse, the girl child might become pregnant and would have to deliver a baby even though her body is not quite ready for procreation. There are greater chances of a girl child dying during childbirth and there are greater chances of neonatal deaths. Children born from early marriages are more likely to be malnourished. It would, therefore, not be wise to continue with a practice, traditional though it might be, that puts the life of a girl child in danger and also puts the life of the baby of a girl child born from an early marriage at stake. Apart from constitutional and statutory provisions, constitutional morality forbids from giving an interpretation to Exception 2 to Section 375 IPC that sanctifies a Page 16 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 tradition or custom that is no longer sustainable.
(Paras 66 and 91) State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57 : 1991 SCC (Cri) 1; Suchita Srivastava v. UT of Chandigarh, (2009) 9 SCC 1 : (2009) 3 SCC (Civ) 570; Selvi v. State of Karnataka, (2010) 7 SCC 263 : (2010) 3 SCC (Cri) 1; Ritesh Sinha v. State of U.P., (2013) 2 SCC 357 : (2013) 2 SCC (Cri) 748; Devika Biswas v. Union of India, (2016) 10 SCC 726, relied on Article 14 of the Constitution Pro-child statutes are intended to and do consider the best interest of the child. These statutes havebeen enacted in the recent past though not effectively implemented. Given this situation, a few facts need to be acknowledged and accepted:
Firstly, a child is and remains a child regardless of the description or nomenclature given to the child. It is universally accepted in almost all relevant statutes in our country that a child is a person below 18 years of age. Therefore, a child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated child or a widowed child.
(Para 79.1) Secondly, the age of consent for sexual intercourse is definitively 18 years and there is no dispute about this. Therefore, under no circumstance can a child below 18 years of age give consent, express or implied, for sexual intercourse. Therefore, the justification given on behalf of the Union of India for Exception 2 to Section 375 IPC that by virtue of getting married, the girl child has consented to sexual intercourse with her husband either expressly or by necessary implication has no substance. Unless Parliament gives any specific indication (and it has not given any such indication) that the age of consent could be deviated from the age of 18 years, statutorily fixed, for any rational reason, it cannot be assumed that a girl child who is otherwise incapable of giving consent for sexual intercourse has nevertheless given such consent by implication, necessary or otherwise only by virtue of being married. It would be reading too much into the mind of the girl child and assuming a state of affairs for which there is neither any specific indication nor any warrant. Constitutionally a female has equal rights as a male and no statute should be interpreted or understood to derogate from this position. If there is some theory that propounds such an unconstitutional myth, then that theory deserves to be completely demolished.
(Paras 79.2, 83 and 84) Thirdly, Exception 2 to Section 375 IPC creates an artificial distinction between a married girl child and an unmarried girl child with no real rationale and thereby does away with consent for Page 17 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 sexual intercourse by a husband with his wife who is a girl child between 15 and 18 years of age. An unmarried girl below 18 years of age could be a victim of rape under IPC and a victim of penetrative sexual assault under the Pocso Act. Such a victim might have the solace (if we may say so) of prosecuting the rapist. A married girl between 15 and 18 years of age could be a victim of aggravated penetrative sexual assault under the Pocso Act, but she cannot be a victim of rape under IPC if the rapist is her husband since IPC does not recognise such penetrative sexual assault as rape. Therefore such a girl child has no recourse to law under the provisions of IPC notwithstanding that the marital rape could degrade and humiliate her, destroy her entire psychology pushing her into a deep emotional crisis and dwarf and destroy her whole personality and degrade her very soul. However, such a victim could prosecute the rapist under the Pocso Act. There is no rationale for such an artificial distinction. Such an unnecessary and artificial distinction if accepted can again be introduced for other occasions for divorced children or separated children or widowed children.
(Paras 79.3 and 72) A rapist remains a rapist and marriage with the victim does not convert him into a non-rapist. Whether sexual intercourse that a husband has with his wife who is between 15 and 18 years of age is described as rape (not an offence under Exception 2 to Section 375 IPC) or aggravated penetrative sexual assault [an offence under Section 5(n) of the Pocso Act and punishable under Section 6 of the Pocso Act] the fact is that it is rape as conventionally understood, though Parliament in its wisdom has chosen to not recognise it as rape for the purposes of IPC. That it is a heinous crime which also violates the bodily integrity of a girl child, causes trauma and sometimes destroys her freedom of reproductive choice is a composite issue that needs serious consideration and deliberation.
(Paras 75 and 67) C.R. v. United Kingdom, ECHR, Ser. A. No. 335-C (1995) : (1995) 21 EHRR 363; R. v. R., (1992) 1 AC 599 : (1991) 3 WLR 767 : (1991) 4 All ER 481 (HL); Eisenstadt v. Baird, 1972 SCC OnLine US SC 62 : 31 L Ed 2d 349 : 92 S Ct 1029 : 405 US 438 (1972); State of Karnataka v. Krishnappa, (2000) 4 SCC 75 : 2000 SCC (Cri) 755; Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490: 1996 SCC (Cri) 133; State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316; State of Haryana v. Janak Singh, (2013) 9 SCC 431 :
(2014) 1 SCC (Cri) 212, referred to Thus there is an apparent conflict or incongruity between the provisions of IPC and the Pocso Act. The rape of a married girl child (a girl child between 15 and 18 years of age) is not rape under IPC and therefore not an offence in view of Exception 2 to Section 375 IPC thereof but it is an offence of aggravated penetrative sexual assault under Section 5(n) of the Pocso Act and punishable under Section 6 of that Act. The punishment for rape (assuming it is committed) and the punishment for penetrative sexual assault is the same, namely, imprisonment for a minimum period of 7 years Page 18 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 which may extend to imprisonment for life. Similarly, for an "aggravated" form of rape the punishment is for a minimum period of 10 years' imprisonment which may extend to imprisonment for life (under IPC) and the punishment for aggravated penetrative sexual assault (which is what is applicable in the case of a married girl child) is the same (under the Pocso Act). It is difficult to understand why this is so. There is no intelligible answer to the question as to what is the rational nexus between decriminalising sexual intercourse under IPC with a married girl child and an unclear and uncertain statutory objective.
This conflict or incongruity needs to be resolved in the best interest of the girl child.
(Para 76) Another anomaly is that although the husband of girl child can rape her but he cannot molest her, for if he does so he could be punished under the provisions of IPC. Thus different irrational standards have been laid down for the treatment of the girl child by her husband.
(Para 90) Legislation which may be quite reasonable and rational at the time of its enactment may with the lapse of time and/or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equality and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become non-existent.
(Para 88) What is sought to be achieved by the artificial distinction is to acknowledge that child marriages are taking place in the country. Merely because child marriages have been performed in different parts of the country as a part of a tradition or custom does not necessarily mean that the tradition is an acceptable one nor should it be sanctified as such. Times change and what was acceptable a few decades ago may not necessarily be acceptable today. The impact and effect of Exception 2 to Section 375 IPC has to be considered not with the blinkered vision of the days gone by but with the social realities of today. Traditions that might have been acceptable at some historical point of time are not cast in stone. If times and situations change, so must views, traditions and conventions. In effect the practice of early marriage or child marriage even if sanctified by tradition and custom may yet be an undesirable practice today with increasing awareness and knowledge of its detrimental effects and the detrimental effects of an early pregnancy. Sooner this traditional practice is given up, it would be in the best interest of the girl child and for society as a whole.
(Paras 80, 85, 88 and 89) State of M.P. v. Bhopal Sugar Industries Ltd., (1964) 6 SCR 846 : AIR 1964 SC 1179; Rattan Arya v. State of T.N., (1986) 3 SCC 385; Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1; Hotel Assn. of India v. Union of India, 2006 SCC OnLine Del 44 : (2006) 86 DRI Page 19 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 668; Satyawati Sharma v. Union of India, (2008) 5 SCC 287, relied on Motor General Traders v. State of A.P., (1984) 1 SCC 222, cited The view that marital rape of a gin child has the potential of destroying the institution of marriage cannot be accepted. Marriage is not institutional but personal -- nothing can destroy the "institution" of Marriage except a statute that makes marriage illegal and punishable. A divorce may destroy a marriage but it does not have the potential of destroying the "institution" of marriage. A judicial separation may dent a marital relationship but it does not have the potential of destroying the "institution" of marriage or even the marriage. It cannot be said that no divorce should be permitted or that judicial separation should be prohibited.
(Para 92) Looked at from another perspective, the PCMA actually makes child marriages voidable and makes the parties to a child marriage (other than the girl child) punishable for an offence under the said Act. For someone who supports the institution of marriage nothing could be more destructive of the institution of marriage than the PCMA which makes a child marriage voidable and punishable on the one hand and on the other, it otherwise collaterally legitimises the pernicious practice of child marriages. It is doubtful if the Parliamentary Standing Committee intended such a situation along with its attendant adverse and detrimental impacts.
(Para 93) Article 15 of the Constitution The provisions of the J) Act as wel! as the provisions of the Pocso Act are traceable to Article 15(3) of the Constitution which enables Parliament to make special provisions for the benefit of children. Article 15 (3) of the Constitution is intended to benefit women. It is intended to discriminate in favour of women and children--a form of affirmative action to their advantage. It cannot and ought not to be interpreted restrictively but must be given its full play. Legislation intended for affirmative action in respect of a girl child must not only be liberally construed and interpreted but must override any other legislation that seeks to restrict the benefit made available to a girl child. This would only emphasise the spirit of Article 15(3) of the Constitution.
(Paras 95, 56 and 60) State of A.P. v. P.B. Vijayakumar, (1995) 4 SCC 520 : 1995 SCC (L&S) 1056; Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930 :
AIR 1954 SC 321 : 1954 Cri LJ 886, relied on Mahadev Jiew v. B.B. Sen, 1951 SCC OnLine Cal 182 : AIR 1951 Cal 563; Cyril Britto v. Union of India, 2003 SCC OnLine Ker 190 : AIR 2003 Ker 259; Shrikrishna Eknath Godbole v. Union of India, 2016 Page 20 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 SCC OnLine Bom 9559, approved Statutes concerning the rights of children are special laws concerning a special subject of legislation and therefore the provisions of such subject-specific legislations must prevail and take precedence over the provisions of a general law such as IPC. The subject-matter and the perspective of the statute are determinative of the question whether a statute is a general law or a special law. Therefore, for certain purposes a statute might be a special law but for other purposes, as compared to another statute, it might be a general law.
(Paras 95 and 96) LIC v. D.J. Bahadur, (1981) 1 SCC 315 : 1981 SCC (L&S) 111, relied on The JJ Act gives a clear indication that a girl child who is in imminent risk of marriage before attaining the age of 18 years is a child in need of care and protection [Section 2(14)(xii) of the JJ Act]. It cannot be said with any degree of rationality that such a girl child loses her status as a child in need of care and protection soon after she gets married. If this provision is ignored or given a go by, it would put the girl child in a worse off situation because after marriage she could be subjected to aggravated penetrative sexual assault for which she might not be physically, mentally or psychologically ready. The intention of the JJ Act is to benefit a child rather than place her in difficult circumstances. A contrary view would not only destroy the purpose and spirit of the JJ Act but would also take away the importance of Article 15(3) of the Constitution. Surely, such an interpretation and understanding cannot be given to the provisions of the JJ Act.
(Para 97) Similarly, the provisions of the Pocso Act make it quite explicit that the dignity and rights of a child below 18 years of age must be recognised and respected. For this purpose, special provisions have been made in the Pocso Act as for example Sections 28, 29 and 33. Once again the legislative slant is in favour of a child thereby giving substantive meaning to Article 15(3) of the Constitution. However, of much greater importance and significance is Section 42-A, which provides that the provisions of the Pocso Act are in addition to and not in derogation of the provisions of any other law in force which includes IPC. Moreover, the section provides that in the event of any inconsistency between the provisions of the Pocso Act and any other law, the provisions of the Pocso Act shall have overriding effect. It follows from this that even though IPC decriminalises the marital rape of a girl child, the husband of the girl child would nevertheless be liable for punishment under the provisions of the Pocso Act for aggravated penetrative sexual assault.
(Paras 98 and 99) Prima facie it might appear that since rape is an offence under IPC (subject to Exception 2 to Section 375) while penetrative sexual Page 21 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 assault or aggravated penetrative sexual assault is an offence under the Pocso Act and both are distinct and separate statutes, therefore there is no inconsistency between the provisions of IPC and the provisions of the Pocso Act. Only a notional or linguistic distinction is sought to be made between rape and penetrative sexual assault and rape of a married girl child and aggravated penetrative sexual assault. There is no rationale for this distinction and it is nothing but a completely arbitrary and discriminatory distinction.
(Para 100) Karnataka Amendment The most obvious and appropriate resolution of the conflict has been provided by the State of Kamataka--the State Legislature has inserted sub-section (1-A) in Section 3 of the PCMA (on obtaining the assent of the President on 20-4-2017) declaring that henceforth every child marriage that is solemnised is void ab initio. Therefore, the husband of a girl child would be liable for punishment for a child marriage under the PCMA, for penetrative sexual assault or aggravated penetrative sexual assault under the Pocso Act and if the husband and the girl child are living together in the same or shared household, for rape under IPC. It would be wise for all the State Legislatures to adopt the route taken by Kamataka to void child marriages and thereby ensure that sexual intercourse between a girl child and her husband is a punishable offence under the Pocso Act and IPC. Assuming all other State Legislatures do not take the Karnataka route, what is the correct position in law?
(Paras 77 and 78) Harmonious and Purposive Interpretation The provisions of various complementary statutes need to be harmonised and read purposively to present an articulate whole. Therefore, the entire issue of the interpretation of the JJ Act, the Pocso Act, the PCMA and Exception 2 to Section 375 IPC can be looked at from the perspective of purposive and harmonious construction of statutes relating to the same subject-matter, as well as the social context point of view. Viewed from any perspective, there seems to be no reason to arbitrarily discriminate against a gir child who is married between 15 and 18 years of age. On the contrary, there is every reason to give a harmonious and purposive construction to the pro-child statutes to preserve and protect the human rights of the married girl child.
(Paras 76, 101, 104 and 105) Collector of Customs v. Digvijaysinhji Spg. & Wvg. Mills Ltd., AIR 1961 SC 1549 : (1961) 2 Cri LJ 720; Jugal Kishore v. State of Maharashtra, 1989 Supp (1) SCC 589; Abhiram Singh v. CD. Commachen, (2017) 2 SCC 629 : (2017) 2 SCC (Civ) 68, relied on Seaford Court Estates Ltd. v. Asher, (1949) 2 KB 481 (CA); Asher v. Seafort Court Estates Ltd., 1950 AC 508 (HL), referred to Implementation of Laws The Preamble to our Constitution brings out our commitment Page 22 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 to social justice, but unfortunately, this petition clearly brings out that social justice laws are not implemented in the spirit in which they are enacted by Parliament. Young girls are married in thousands in the country, and as Section 13 of the PCMA indicates, there is an auspicious day -- Akshaya Trutiya -- when mass child marriages are performed. Such young girls are subjected to sexual intercourse regardless of their heaith, their ability to bear children and other adverse social, economic and psychological consequences. Civil society can do just so much for preventing such child marriages but eventually it is for the Government of India and the State Governments to take proactive steps to prevent child marriages so that young girls in our country can aspire to a better and healthier life.
(Para 106) Conclusion Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The Exception carved out in IPC creates an unnecessary and artificial distinction between a married girt child and an unmarried giri child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice. What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil.
(Para 1) There are really five options before the Court : (i) To let the incongruity remain as it is -- this does not seem a viable option, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 IPC -- in the present case this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years -- this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the Pocso Act in consonance with Exception 2 to Section 375 IPC -- this is also not a viable option since it would require not only a retrograde amendment to the Pocso Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 IPC in a purposive manner to make it in consonance with the Pocso Act, the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, this is the only pragmatic option available. Therefore, there is absolutely no other option but to harmonise the system of laws relating to children and require Exception 2 to Section 375 IPC to now be meaningfully read as:"Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteer of age, is not rape." It is only through this reading that the intent of social Page 23 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 justice to the married gins Gin and the constitutional vision of the Framers of our Constitution can be preserved and protected and perhaps given impetus.
(Para 107)"
[11.1] These views have been concurrently further analyzed by Hon'ble Justice on the bench expressing concurrent views since the said views are similar, the Court would like to incorporate only concluding part thereof in a summarized manner mentioned in the head- note:-
"Conclusion --Relief Exception 2 to Section 375 IPC insofar as it relates to a girl child below 18 years is liable to be struck down on the following grounds : (i) it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Articles 14, 15 and 21 of the Constitution of India; (ii) it is discriminatory and violative of Article 14 of the Constitution of India; and (iii) it is inconsistent with the provisions of the Pocso Act, which must prevail.
(Para 197) Since the Court has not dealt with the wider issue of "marital rape", Exception 2 to Section 375 IPC should be read down to bring it within the four comers of law and make it consistent with the Constitution of India. Therefore, Exception 2 to Section 375 IPC is read down as follows:"Exception 2.--Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape." It is, however, made clear that this judgment will have prospective effect.
(Paras 196 and 197) It is also clarified that Section 198(6) CrPC will apply to cases of rape of "wives" below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) CrPC. It is reiterated that nothing said in this judgment shall be taken to be an observation one way or the other with regard to the issue of "marital rape".
(Paras 198 and 199) One of the doubts raised was if the Supreme Court strikes down, partially or fully, Exception 2 to Section 375 IPC, is the Court creating a new offence? There can be no cavil of doubt that the courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 IPC, no new offence is being created. The offence already exists in the main Page 24 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 part of Section 375 IPC as well as in Sections 3 and 5 of the Pocso Act. What has been done is only to read down Exception 2 to Section 375 IPC to bring it in consonance with the Constitution and the Pocso Act. The Court is not creating any new offence but only removing what was unconstitutional and offensive.
(Paras 190 and 194)"
[11.2] So keeping in view the aforesaid observations, the object of the special statute and the parameters which are prescribed for consideration of bail, this Court is of the opinion that no case is made out by the appellant to call for any interference.
[12] At the stage, the Court would also like to recollect the very recent pronouncement judgment delivered by Hon'ble Apex Court reported in (2021) 6 SCC 201 wherein the Court has clearly propounded that merely because the charge-sheet is filed is no ground to release the accused on bail and the seriousness of offence is one of the relevant consideration while considering the grant of bail. As a result of this, keeping this proposition in mind also when the victim is below the age of 15 years, the Court is not inclined to consider the request of the appellant.
[13] Further, the Court would also like to reproduce some few observations made by Hon'ble Apex Court on the issue of proper exercise of discretionary power while dealing with bail application under Section 439 of the Cr.P.C. The relevant observations contained in the decision in the case of Mahipal versus Rajesh Kumar Page 25 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 Alias Polia and another reported in (2020) 2 SCC 118, the Court would like to reproduce the same hereunder:
"11. Essentially, this Court is required to analyse whether there was a valid exercise of the power conferred by Section 439 of the CrPC to grant bail. The power to grant bail under Section 439 is of a wide amplitude. But it is well settled that though the grant of bail involves the exercise of the discretionary power of the court, it has to be exercised in a judicious manner and not as a matter of course. In Ram Govind Upadhyay v Sudarshan Singh5, Justice Umesh Banerjee, speaking for a two judge Bench of this Court, laid down the factors that must guide the exercise of the power to grant bail in the following terms:
"3. Grant of bail though being a discretionary order -- but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case...The nature of the offence is one of the basic considerations for the grant of bail -- more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.
4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:
(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to Page 26 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 be (2002) 3 SCC 598 considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
14. The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case by case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding.
26. In Kalyan Chandra Sarkar v Rajesh Ranjan13, a two judge Bench of this Court was required to assess the correctness of a decision of a High Court enlarging the accused on bail. Justice Santosh Hegde, speaking for the Court, discussed the law on the grant of bail in non-bailable offences and held:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind."Page 27 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021
R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 [14] The aforesaid observations are sufficiently indicating that the nature of offence and seriousness of impact on society is also to be kept in mind by the Court and as such, at this elementary stage, the Court is of the opinion that the object of special statute cannot be given a go-by, particularly, when the prosecution yet has an opportunity to establish the case during the course of trial and since the age of prosecutrix as on prima facie material is found to be below 15 years, the Court is not inclined to exercise the discretion in peculiar background of this fact, more precisely, keeping in view, the detailed discussion indicated in aforesaid decision of Hon'ble Apex Court in case of Independent thought versus Union of India and other (supra).
[15] From the aforesaid overall material and the proposition of law laid down as stated above, the issue raised by learned advocate Mr.Pratik B.Barot that prosecution at this stage is not possible to be accepted by the Court particularly in view of the serious nature of the crime and the offence having serious impact on social fabric in the society and further in view of the fact that a public document named as Adhar Card as on date is indicating the age of victim as 14 years and 11 months at the time of commission of offence and since trial is yet to adjudicate wherein there is a further chance and an ample opportunity for the prosecution to lead the appropriate evidence, in view of aforesaid circumstances, if the request is considered, the same would be setting up a bad Page 28 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 example to ignore the age and the seriousness of offence, which ultimately has the effect of disturbing the social fabric, hence, it would not be safe to accept the contention. The decision delivered by High Court of Judicature at Allahabad, Lucknow Bench is a decision in the context of dealing with quashing of the FIR but the said decision has not convinced the Court to grant relief to the appellant for following reasons:
Firstly, the High Court of Judicature at Allahabad, Lucknow Bench was dealing with a petition for seeking quashment of the complaint as the process is sought to be abused by the complainant and in that context the Bench was dealing with the issue. Further, the Court was confronted with a situation in that case wherein the large number of cases with regard to casual recording of date of birth in the Adhar Card was brought to the notice of the Court and in that peculiar background of facts and on the basis of such premise, the Hon'ble Bench has observed which eventuality is not in the case on hand especially when the Court is here concerned as to whether appellant deserves to be enlarged on bail or not. Further in paragraph Nos. 43 and 44, the case which was relied upon is having the background of fact wherein the burden of proof had not been discharged by the prosecution to established the age and even Headmaster had not been examined and in that context transfer certificate cannot be relied upon to fix the age of the girl and as such, Page 29 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 reliance is made on the decisions of course whereof a different stage and proceedings before the Lucknow Bench of the High Court of judicature at Allahabad were related to quashment of complaint based upon allegation of abuse of the process no such eventuality is on the case on hand and as such when facts are different altogether, the stage is different and nature of proceedings is also different, this Court is not inclined to exercise the discretion keeping in view the overall object of the special statute vis-a-vis the age of the victim. Hence, the said decision of Lucknow Bench is of no assistance to the appellant.
[16] Yet another decision in the case of Ms.X
versus State of Telangana reported in 2018
CRI.L.J.3070 the observations contended in paragraph No.11 since are kept in mind are reproduced hereunder:
"11 While the principles in regard to the grant of bail under Section 439 are well settled, we may note for the completeness of the record, that reliance has been placed on behalf of the appellant on the decisions of this Court in Kanwar Singh v State of Rajasthan1, Neeru Yadav v State of UP2 and State of Bihar v Rajballav Prasad3. In Kanwar Singh, a Bench of two learned Judges of this Court has held thus:
"Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts.
That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of Page 30 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021 R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court."
In Neeru Yadav, applying the same principle, this Court held that:
"It is a well-settled principle of law that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are: (i) the nature of accusation and the severity of punishment in cases 2012 (12() SCC 180 2016(15) SCC 422 2017(2)SCC 178 of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) prima facie satisfaction of the Court in support of the charge."
The decision in Rajballav Prasad emphasises that while the liberty of the subject is an important consideration, the public interest in the proper administration of criminal justice is equally important:
"...undoubtedly the courts have to adopt a liberal approach while considering bail applications of accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is this need for larger public interest to ensure that criminal justice delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations."
[17] In view of the aforesaid circumstances when at this stage of proceedings court is not to undertake an exercise of analysis of material as if it is a mini trial, the Court is not inclined to consider the request of appellant.
Page 31 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 On the contrary, looking to the provisions of Adhar Card as well as its regulations, it gives a liberty to the concerned person to change the material which is recorded in Adhar Card and the regulations are on the contrary suggesting that information which has been recorded is authenticated by confirming the material stated therein as there is a clear declaration of the person concerned who is giving particulars and therefore, in this proceedings of bail, microscopic analysis of such provisions of the Act and regulations is not to be undertaken at this stage and as such the reliance which has been placed by the learned advocate on this issue is appearing to be misplaced one which the Court is not inclined to accept, hence, no case is made out to call for any interference. Accordingly, appeal stands dismissed. However, while parting with present order, it is observed that it would be open for the appellant to make a request before the Court concerned for expeditious disposal of trial of the case and these observations contained in the present order are only in the context of present appeal only.
Sd/-
(ASHUTOSH J. SHASTRI, J.) DHARMENDRA KUMAR Page 32 of 32 Downloaded on : Wed Sep 08 01:04:59 IST 2021