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The Allahabad High Court recently refused to grant bail to a person accused of rape and offences under the Protection of Children from Sexual Offences Act (POCSO) despite the victim and accused expressing their willingness to marry each other

In the present case, a regular bail application had been filed under Section 439 Cr.P.C. by the applicant (Kamil )being aggrieved of order dated 10.09.2020 passed by learned Special Judge, POCSO Act, Allahabad, rejecting bail application.

The Single Judge Bench of Justice

“Notwithstanding the sentiments of the victim, as has been held by Supreme Court in case of Aparna Bhat and Others vs. State of M.P. and Anothers; 2021 CRI. L. J. 2281, this Court is estopped from taking cognizance of any such compromise once the statements of the victim are read, as recorded under Section 164 Cr.P.C. before the Magistrate and therefore, bail application fails and is dismissed.”

The Learned counsel for applicant submitted that, “Prosecutrix is major and has filed an application to the effect that she is willing to marry the accused. Placing reliance on such documents, it is submitted that since prosecutrix is willing to marry the applicant, it is a good case for enlarging the applicant on bail.”

He also submitted that prima facie, “it appears to be a case of consent especially, once it come on record that prosecutrix, as per the medical determination of age, was 18 years of age at the time of the incident.”

On the contrary, the Learned AGA submitted that, “Prosecutrix has not supported the case of the applicant. It is submitted that incident took place on 29.02.2020. FIR was lodged on the same day. It is further submitted that in her statement under Section 164 Cr.P.C., she has supported the prosecution version.”

He further submitted that, “in the light of the law laid down in case of Gold Quest International Private Limited vs. State of Tamil Nadu and Others; (2014) 15 SCC 235, such heinous crime as under Section 376 IPC, cannot be compounded or proceedings, cannot be quashed merely because prosecutrix decides to marry the accused.”

According to AGA , it had also come in the order-sheet dated 06.04.2021 that though victim has stated that she wants to marry the applicant, but the affidavit filed in this regard only contains thumb impression of victim and does not contain a reciprocal sentiments of the accused.

Lastly the bench clarified that, “at this stage, Sri Shakeel Ahmad Azmi, submits that applicant himself is willing to marry the prosecutrix. This Court cannot take cognizance of such statements while considering bail application.”

[Case Title - Kamil v. State of Uttar Pradesh]