Bail and Suspension of Sentence in POCSO Act

The brief facts of the case is that Petitioner/accused and prosecutrix both residing in the same locality, known to each other for long time and the developed relationship each other and both with free consent, without any coercion and undue pressure decided to enter into a matrimonial relationship though before entering into relationship prosecutrix was aware of the fact that her marriage with petitioner will not be approved by her family members and there were high probability that she will be married to some one else, therefore she asked the petitioner to register their marriage at Arya Samaj. Marriage was registered and she resides voluntarily without any fear and coercion at her matrimonial home i.e. at the residence of the petitioner.

After 8 days, her uncle on 22.10.2016 (after a delay of about 8 days) filed FIR u/s 363 IPC against petitioner for kidnapping. That on 24.10.2016 prosecutrix was recovered from the house of petitioner and she voluntarily stated that her age is 18 years 6 months and she decided with free consent and without any fear to marry with petitioner as her parents would marry somewhere else.

Prosecutrix in her statement u/s 161 CrPC dated 24.10.2016 stated that she did not want to go to her parents house and she is more than 18 years of age and her statement u/s 164 CrPC was recorded on 24.10.2016 and she clearly stated that her age is 18 years and she married to petitioner.

Before Trial Court during evidence, prosecutrix stated that date of birth recorded in her school records is correct. As per school record, she is 13 years age. Principal of school stated that her date of birth was recorded on the basis of affidavit given by prosecutrix's father at the time of joining school. Ossification test was ordered by Trial Court, result shows that prosecutrix is b/w 20 to 30 years.

However, Trial Court applying the principles enshrined under Justice Juvenile act 2015, convicted petitioner u/s 366 IPC and u/s 6 r/w 5(p) of POCSO Act and sentence him for imprisonment for 10 year R.I. by relying on only piece of evidence that prosecutrix’s school records reflect her date of birth is 18.09.2003 which comes to age 13 years.

Petitioner challeged the same by filing appeal before Delhi High Court, though appeal was admitted but the bail and suspension of sentence application was rejected by Hon'ble High Court on the sole ground there is finding recorded by Ld. Trial Court that prosecutrix is aged 13 years at the time of offence.

The impugned order of High Court was challenged before Apex Court by filing Special Leave Petition. The Counsel for Petitioner namely Mr. Ronak Karanpuria with Vishwa Pal Singh, AOR stated that neither abduction was proved which falsify the basis of FIR. Most importantly prosecutrix in Section 161, 164 stated clearly supported the case of petitioner and her ossification test shows she is more than 20 years and therefore she was not minor on the date before enterning into sexual relationship. It was stated that Trial Court wrongly applied the principles of JJ Act, 2015, where date of birth recorded in matriculation certificate or school record can be relied only when it was based on authentic underlying documents, however, in the instant case, date of birth of prosecutrix was recorded on the basis of affidavit filed by her father which is not admissible at per law.

Mr. K M Natrajan ASG with Mr. Chirag M. Shroff, AOR appearing for State, supported the findings recorded by Ld. trial Court and stated that accused has undergone only 1.5 years of imprisonment out of 10 years and therefore ought to not be released from Jail.

Apex Court after hearing both sides granted leave and allowed the criminal appeal. Held that High Court was totally wrong in not granting bail and suspension of sentence. Apex Court setaside the order passed by High Court and set the petitioner/appellant free.