POCSO Act not intended to penalise teenagers in "dense romantic affair"

POCSO Act not intended to penalise teenagers in "dense romantic affair"

Atul Mishra Vs State Of UP Ors

Allahabad HC

25/01/2022

CRIMINAL MISC. BAIL APPLICATION No. - 53947 of 2021

About/from the judgment:

The scheme of the Protection of Children from Sexual Offences Act (POCSO) did not intend to bring within its scope, cases where adolescents or teenagers are involved "in dense romantic affair", the Allahabad High Court observed while granting bail to a man who married a 14-year-old minor girl.

The Court granted bail to one Atul Mishra who had eloped with a 14-year-old girl and gotten married at a temple. The minor girl later gave birth to a baby.

"The scheme of the Act clearly shows that it did not intend to bring within its scope or limits, the cases of the nature where the adolescents or teenagers involved in the dense romantic affair," the Court said.

In the present case, the Court said that it would be extremely harsh and inhuman to devoid the baby from parental love and affection on account of the fact that both the accused and minor victim loved each other and decided to get married.

"It is extremely harsh and inhuman to devoid that baby from the parental love and affection on account of the fact that both of them loved each other and decided to marry, when the girl was minor. Even today the boy (the applicant) is more than ready to keep his wife and baby with him and would take good care of both."

The case arose in November 2019, when the father of the girl lodged a First Information Report against Mishra alleging that his minor daughter was enticed away by the applicant.

Mishra was booked for rape under Section 376 of Indian Penal Code (IPC) and for offences under Sections 3 (penetrative sexual assault) and 4 (punishment for penetrative sexual assault) of POCSO Act, 2012 along with provisions under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Eventually on October 10, 2021 after getting a tip from the informer, police arrested the accused who was found along with the girl and the baby.

Since on the date of incident the victim was minor, she was sent to Rajkiya Balgirh (Balika) Khuldabad, Prayagaraj and Mishra was sent to jail.

The Additional Sessions Judge/ Special Judge (POCSO Act), Fatehpur rejected the bail application moved on behalf of applicant in November 2021.

This led to the present plea before the High Court.

With regard to the enactment of POCSO Act, the High Court said that it was to effectively address the heinous crime of sexual abuse and sexual exploitation of children.

In this regard, the court remarked that the object of the Act must have some genuine and inherent exceptions too and it is imperative for the Court of law to draw a thin line that demarcates the nature of acts that should not be made to fall within the scope of this enactment.

"There are certain gray areas, where the severity of the sentences provided under the Act, rightly so be diluted keeping in view the facts of each case. If these rigors of the enactment is pasted hastily or irresponsibly, it could lead to irreparable damage to the reputation and future of young whose actions would have been only innocuous and may lead to spoiling the future life of that innocent lovers or couple who out of sheer innocence have initially developed and thereafter established that relationship, which if seen through the bioscope of these penal provisions of Act of 2012, would fall within the realm of offence," the Court opined.

The Court, therefore, granted bail to the applicant and also directed the In-Charge of Rajkiya Balgrih (Balika) Khuldabad, to release the victim with her baby.

"Thus, assessing the totality of facts and circumstances, in this extraordinary condition and keeping in view the nature of the offence, evidence on record regarding complicity of the accused and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed," the order said.

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