Himachal Pradesh High Court
Vikram @ Vicky vs State Of Hp on 21 July, 2026
2026:HHC:29835
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 1041 of 2026
Reserved on : 20.07.2026
.
Date of Decision: 21.7.2026.
Vikram @ Vicky ....Petitioner
Versus
State of HP ....Respondent
of
Coram
rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr Janmajai Chauhan,
Advocate.
For the Respondent/State : Mr Lokender Kutlehria,
Additional Advocate General
with SI Mohinder Singh P.S.
Shillai, District Srimour, H.P.
The victim is present in person.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail in FIR No. 32 of 2025, dated 30.06.2025,
registered at Police Station Shillai, District Sirmaur, H.P., for the
commission of offences punishable under Section 64 of
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Bharatiya Nyaya Sanhita (BNS), 2023 and Sections 4 and 6 of the
Protection of Children from Sexual Offences (POCSO) Act, 2012.
.
2. It has been asserted that, as per the prosecution, the
victim showed up at Community Health Centre Ronhat for her
checkup. She was found positive for pregnancy. The doctor in
charge informed the Police Station Shillai. The police recorded
of
the victim’s statement and registered the F.I.R. As per the
victim’s version, she was alone in her home, and the petitioner
rt
had sexual intercourse with her. She missed her menstrual
period and went to the Community Health Centre for her
checkup, where she was found to be pregnant. The pregnancy of
the victim was subsequently terminated. The police arrested the
petitioner on 01.07.2025. The police filed a charge sheet after the
completion of the investigation. The prosecution has examined 5
witnesses out of 21 cited by it. The victim and her mother have
deposed in favour of the accused. The statements of official
witnesses are to be recorded. The victim was not a minor on the
date of the incident, and no offence punishable under Sections 4
and 6 of the POCSO Act is made out against the petitioner.
Therefore, it was prayed that the present petition be allowed and
the petitioner be released on bail.
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3. The petition is opposed by filing a status report,
asserting that the victim was studying in class Ninth. She knew
.
the petitioner. The victim’s relatives had gone to Village Dahar,
and the victim was alone. The petitioner visited the victim’s
house and maintained a sexual relationship with her. The victim
missed her menstrual period, and she went to CHC Ronhat,
of
where the result of the pregnancy test was found to be positive.
The police registered the FIR and investigated the matter. The
rt
victim’s date of the birth certificate issued by the school showed
that the victim was born on 04.03.2011. The victim was a minor
on the date of the incident. The victim’s pregnancy was
terminated. The samples were sent to the FSL, and as per the
report, the petitioner is the biological father of the fetus. The
charge sheet was filed before the Court after the completion of
the investigation. Statements of 10 witnesses out of 21 have been
recorded, and the matter is listed on 27.07.2026 and 28.07.2026
before the learned Trial Court. Hence, the status report.
4. I have heard Mr Janmajai Chauhan, learned counsel
for the petitioner, Mr Lokender Kutlehria, learned Additional
Advocate General, for the respondent/State and the victim, who
appeared in person before the Court.
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5. Mr Janmajai Chauhan, learned counsel for the
petitioner, submitted that the petitioner is innocent and he was
.
falsely implicated. The victim was not a minor. She and her
mother have recanted their testimonies. Petitioner has remained
behind bars for about one year, and the prosecution has not
completed the evidence. The petitioner’s right to a speedy trial is
of
being violated, and the petitioner is entitled to bail. Therefore, he
prayed that the present petition be allowed and the petitioner be
rt
released on bail.
6. Mr Lokender Kutlehria, learned Additional Advocate
General, for the respondent/State, submitted that the victim was
a minor on the date of the incident and could not have consented
to any sexual intercourse between her and the petitioner. The
petitioner had taken advantage of the victim’s minority and
impregnated her. The offence is heinous, and no leniency should
be shown to the petitioner. Hence, he prayed that the present
petition be dismissed.
7. The victim, who appeared in person, stated that she
had no objection to releasing the petitioner on bail.
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8. I have given a considerable thought to the
submissions made at the bar and have gone through the records
.
carefully.
9. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC
314: 2025 SCC OnLine SC 781, wherein it was observed at page 380:
of
(i) Broad principles for the grant of bail
56. In Gudikantis Narasimhulu v. High Court of A.P., (1978) 1
SCC 240: 1978 SCC (Cri) 115, Krishna Iyer, J., while
rt
elaborating on the content of Article 21 of the Constitution
of India in the context of personal liberty of a personunder trial, has laid down the key factors that should be
considered while granting bail, which are extracted as
under: (SCC p. 244, paras 7-9)
“7. It is thus obvious that the nature of the charge is thevital factor, and the nature of the evidence is also
pertinent. The punishment to which the party may be
liable, if convicted or a conviction is confirmed, alsobears upon the issue.
8. Another relevant factor is whether the course of justice
would be thwarted by him who seeks the benignant
jurisdiction of the Court to be freed for the time being.
[Patrick Devlin, “The Criminal Prosecution in England”
(Oxford University Press, London 1960) p. 75 —
Modern Law Review, Vol. 81, Jan. 1968, p. 54.]
9. Thus, the legal principles and practice validate the Court
considering the likelihood of the applicant interfering with
witnesses for the prosecution or otherwise polluting the
process of justice. It is not only traditional but rational, in
this context, to enquire into the antecedents of a man who
is applying for bail to find whether he has a bad record,::: Downloaded on – 21/07/2026 20:35:33 :::CIS
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2026:HHC:29835particularly a record which suggests that he is likely to
commit serious offences while on bail. In regard to
habituals, it is part of criminological history that a
thoughtless bail order has enabled the bailee to exploit the.
opportunity to inflict further crimes on the members of
society. Bail discretion, based on evidence about the
criminal record of a defendant, is therefore not an exercise
in irrelevance.” (emphasis supplied)
57. In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4
SCC 280: 2001 SCC (Cri) 674, this Court highlighted various
aspects that the courts should keep in mind while dealingof
with an application seeking bail. The same may be
extracted as follows: (SCC pp. 284-85, para 8)
“8. The jurisdiction to grant bail has to be exercised on the
basis of well-settled principles, having regard to the
rt
circumstances of each case and not in an arbitrary manner.
While granting the bail, the court has to keep in mind thenature of accusations, the nature of evidence in support
thereof, the severity of the punishment which conviction
will entail, the character, behaviour, means and standing
of the accused, circumstances which are peculiar to theaccused, reasonable possibility of securing the presence of
the accused at the trial, reasonable apprehension of the
witnesses being tampered with, the larger interests of thepublic or State and similar other considerations. It has also
to be kept in mind that for the purposes of granting the bailthe legislature has used the words “reasonable grounds for
believing” instead of “the evidence” which means the
court dealing with the grant of bail can only satisfy it (sicitself) as to whether there is a genuine case against the
accused and that the prosecution will be able to produce
prima facie evidence in support of the charge.” (emphasis
supplied)
58. This Court in Ram Govind Upadhyay v. Sudarshan Singh,
(2002) 3 SCC 598: 2002 SCC (Cri) 688, speaking through
Banerjee, J., emphasised that a court exercising discretion
in matters of bail has to undertake the same judiciously. In
highlighting that bail should not be granted as a matter of::: Downloaded on – 21/07/2026 20:35:33 :::CIS
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2026:HHC:29835course, bereft of cogent reasoning, this Court observed as
follows: (SCC p. 602, para 3)
“3. Grant of bail, though being a discretionary order, but,
however, calls for the exercise of such a discretion in a.
judicious manner and not as a matter of course. An 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 do always vary from case
to case. While the placement of the accused in society,
though it may be considered by itself, cannot be a guiding
of
factor in the matter of grant of bail, the same should
always be coupled with other circumstances warranting
the grant of bail. The nature of the offence is one of the
basic considerations for the grant of bail — the more
rt
heinous is the crime, the greater is the chance of rejection
of the bail, though, however, dependent on the factual
matrix of the matter.” (emphasis supplied)
59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC
528: 2004 SCC (Cri) 1977, this Court held that although it is
established that a court considering a bail application
cannot undertake a detailed examination of evidence and
an elaborate discussion on the merits of the case, yet the
court is required to indicate the prima facie reasons
justifying the grant of bail.
60. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14
SCC 496: (2011) 3 SCC (Cri) 765, this Court observed that
where a High Court has granted bail mechanically, the said
order would suffer from the vice of non-application of
mind, rendering it illegal. This Court held as under with
regard to the circumstances under which an order
granting bail may be set aside. In doing so, the factors
which ought to have guided the Court’s decision to grant
bail have also been detailed as under: (SCC p. 499, para 9)
“9. … It is trite that this Court does not, normally, interfere
with an order passed by the High Court granting or
rejecting bail to the accused. However, it is equally
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incumbent upon the High Court to exercise its discretion
judiciously, cautiously and strictly in compliance with the
basic principles laid down in a plethora of decisions of this
Court on the point. It is well settled that, among other
.
circumstances, the factors to be borne in mind while
considering an application for bail are:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed theoffence;
(ii) nature and gravity of the accusation;
of
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing, if
rt released on bail;
(v) character, behaviour, means, position and standing
of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail.” (emphasis supplied)
xxxxxxx
62. One of the judgments of this Court on the aspect of
application of mind and requirement of judicious exercise
of discretion in arriving at an order granting bail to the
accused is Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 :
(2022) 2 SCC (Cri) 170, wherein a three-Judge Bench of this
Court, while setting aside an unreasoned and casual order
(Pappu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2856
and Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat
2857) of the High Court granting bail to the accused,
observed as follows: (Brijmani Devi v. Pappu Kumar, (2022)
4 SCC 497 : (2022) 2 SCC (Cri) 170]), SCC p. 511, para 35)
“35. While we are conscious of the fact that liberty of an
individual is an invaluable right, at the same time while::: Downloaded on – 21/07/2026 20:35:33 :::CIS
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2026:HHC:29835considering an application for bail courts cannot lose sight
of the serious nature of the accusations against an accused
and the facts that have a bearing in the case, particularly,
when the accusations may not be false, frivolous or.
vexatious in nature but are supported by adequate
material brought on record to enable a court to arrive at a
prima facie conclusion. While considering an application
for the grant of bail, a prima facie conclusion must be
supported by reasons and must be arrived at after having
regard to the vital facts of the case brought on record. Due
consideration must be given to facts suggestive of the
of
nature of crime, the criminal antecedents of the accused, if
any, and the nature of punishment that would follow a
conviction vis-Ã -vis the offence(s) alleged against an
accused.” (emphasis supplied)
rt
10. Hon’ble Supreme Court held in State of Rajasthan v.
Balchand, (1977) 4 SCC 308: 1977 SCC (Cri) 594: 1977 SCC OnLine SC
261 that the normal rule is bail and not jail, except where the
gravity of the crime or the heinousness of the offence suggests
otherwise. It was observed at page 308:
2. The basic rule may perhaps be tersely put as bail, not
jail, except where there are circumstances suggestive offleeing from justice or thwarting the course of justice or
creating other troubles in the shape of repeating offences
or intimidating witnesses and the like, by the petitionerwho seeks enlargement on bail from the Court. We do not
intend to be exhaustive but only illustrative.
3. It is true that the gravity of the offence involved is likely
to induce the petitioner to avoid the course of justice and
must weigh with us when considering the question of jail.
So also, the heinousness of the crime….”
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11. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
.
12. The status report specifically mentions that the DNA
analysis of the petitioner, victim and fetus revealed that the
petitioner was the biological father of the fetus, whereas the
victim was the biological mother of the fetus. The victim had also
of
stated before the police that the petitioner had maintained a
sexual relationship with her in the absence of her family
rt
members. Therefore, the petitioner is, prima facie, connected to
the commission of the crime.
13. It was submitted that the victim and her mother have
not supported the prosecution’s case, and the petitioner is
entitled to bail. This submission is only stated to be rejected. It
was laid down by the Delhi High Court in Dineet v. State (NCT of
Delhi), 2025 SCC OnLine Del 8603, that it is impermissible for the
bail Court to appreciate the evidence recorded during the trial
and grant bail on the ground that the witness has not supported
the prosecution’s case. It was observed:
“17. Addressing Mr Mahajan’s submissions, it is pertinent to
note that nearly the entirety of the petitioner’s case rests
upon the assumption that this Court may enter into witness::: Downloaded on – 21/07/2026 20:35:33 :::CIS
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2026:HHC:29835testimonies and evidence to determine contradictions and
the hostility of witnesses at the stage of bail.
18. However, it is trite that the same is not within the power
of this Court at the stage of bail, as laid down in Satish Jaggi v.
.
State of Chhattisgarh (2007) 11 SCC 195 : (2008) 1 SCC (Cri) 660,
paragraphs 11 and 12 of which merit reproduction:
“11. On the aforesaid reasoning, the learned Chief
Justice thought it fit to grant bail. Mr. A.K. Ganguli,learned Senior Counsel appearing on behalf of the
appellant complainant, Mr. Amarendra Sharan, learned
ASG appearing on behalf of CBI and Mr. Rajiv Dutta,of
learned Senior Counsel appearing on behalf of the State of
Chhattisgarh strenuously contended that having regard
to the observations and findings of the learned Chief
Justice as recorded above, it clearly shows that the
rt
learned Chief Justice while granting bail to the accused
virtually decided the case on merit which amounts to
acquitting the accused of the criminal charge levelledagainst him without trial. Per contra, Mr Vivek Tankha,
learned Senior Counsel, contended that now the evidence
is closed, so there is no question of the accused tampering
with the prosecution witnesses or fleeing from justice. Hefurther contended that now the arguments in the case
have finally started, and the arguments of the
prosecution are over, and only the defence is to give itsreply. He, accordingly, contended that the bail granted by
the learned Chief Justice need not be disturbed.
12. Normally, if the offence is non-bailable, bail can
also be granted if the facts and circumstances so demand.
We have already observed that in granting bail in a non-
bailable offence, the primary consideration is the gravity
and the nature of the offence. A reading of the order of the
learned Chief Justice shows that the nature and the
gravity of the offence and its impact on the democratic
fabric of the society were not at all considered. We are
more concerned with the observations and findings
recorded by the learned Chief Justice on the credibility
and the evidential value of the witnesses at the stage of
granting bail. By making such observations and findings,::: Downloaded on – 21/07/2026 20:35:33 :::CIS
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2026:HHC:29835the learned Chief Justice has virtually acquitted the
accused of all the criminal charges levelled against him
even before the trial. The trial is in progress, and if such
findings are allowed to stand, it would seriously prejudice.
the prosecution’s case. At the stage of granting bail, the
court can only go into the question of the prima facie case
established for granting bail. It cannot go into the
question of the credibility and reliability of the witnessesput up by the prosecution. The question of credibility and
reliability of prosecution witnesses can only be tested
during the trial.”
of
19. By virtue of the aforementioned paragraphs from the
Hon’ble Supreme Court’s decision in Satish Jaggi, it is evinced
that this Court, at the stage of Bail, cannot look into the
allegations of PW2 being a witness who has turned hostile,
nor apply its mind to alleged contradictions in his statement
rt
under Section 161 of the CrPC when compared with his
testimony in Court, as the same would amount to
appreciation of the evidentiary value of his statement and
testimony, and this is an exercise that is only to be
conducted during the course of trial.
20. The same has been relied upon by the Hon’ble Supreme
Court in the judgment of State of Karnataka v. Sri Darshan
2025 SCC OnLine SC 1702, with the following paragraphs of
this decision reproduced for ready reference:
“20.2.5. Further, such an approach of the High Court is
contrary to the judicial precedents of this court, includingSatish Jaggi v. State of Chhattisgarh (supra), Kanwar
Singh Meena v. State of Rajasthan4, wherein it was held
that courts, while considering bail, should not assess thecredibility of witnesses, as this function squarely lies within
the domain of the trial Court. Thus, the impugned order of the
High Court violates this principle by commenting on the delay
in the witness statements and imputing a lack of credibility at
this stage” (emphasis supplied)
*****
“20.3.6. In the present case, the High Court also
proceeded to analyse and discount the credibility of
certain prosecution witnesses and forensic material. It::: Downloaded on – 21/07/2026 20:35:33 :::CIS
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2026:HHC:29835observed contradictions in the eyewitness statements
concerning the overt acts of the accused (para 26). It
expressed doubts about the prosecution’s explanation for
the delay in recording the statements of CW. 76 and CW.
.
91 (para 27). It questioned the timing of the doctor’s
supplementary opinion and weighed its evidentiary worth
(para 31). As already pointed out, the credibility or reliability
of witnesses is a matter for the trial Court to determine afterfull-fledged cross-examination. It is a trite law that
statements recorded under section 161 Cr. P.C. are not
substantive, and their evidentiary value can only be
determined after cross-examination during trial. Any opinionof
rendered at the bail stage risks prejudging the outcome of the
trial and must be avoided. Thus, the court’s assessment of
these aspects amounts to a premature appreciation of the
probative value of prosecution evidence.” (emphasis
rt
supplied)
*****“24. On a cumulative analysis, it is evident that the
order of the High Court suffers from serious legal
infirmities. The order fails to record any special or cogent
reasons for granting bail in a case involving chargesunder Sections 302, 120B, and 34 IPC. Instead, it reflects a
mechanical exercise of discretion, marked by significant
omissions of legally relevant facts. Moreover, the HighCourt undertook an extensive examination of witness
statements at the pre-trial stage, highlighting allegedcontradictions and delays – issues that are inherently matters
for the trial Court to assess through cross-examination. The
trial Court alone is the appropriate forum to evaluate thecredibility and reliability of witnesses. Granting bail in such
a serious case, without adequate consideration of the
nature and gravity of the offence, the accused’s role, and
the tangible risk of interference with the trial, amounts to
a perverse and wholly unwarranted exercise of discretion.
The well-founded allegations of witness intimidation,
coupled with compelling forensic and circumstantial
evidence, further reinforce the necessity for cancellation
of bail. Consequently, the liberty granted under the
impugned order poses a real and imminent threat to the::: Downloaded on – 21/07/2026 20:35:33 :::CIS
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2026:HHC:29835fair administration of justice and risks derailing the trial
process. In light of these circumstances, this Court is
satisfied that the present case calls for the exercise of its
extraordinary jurisdiction under Section 439(2) Cr. P.C.”
.
(emphasis supplied)
21. Drawing inspiration from the judgment in Darshan, the
hostility of a witness cannot be interpreted as an automatic
declaration of the prosecution’s case as unconvincing, and
thereby, in essence, result in the conduction of a mini-trial
at the stage of bail and return findings upon the ex facie merit
of the accused’s innocence/guilt.
of
14. It was laid down by the Hon’ble Supreme Court in X
Vs. State of Rajasthan MANU/SC/1267/2024 that ordinarily, in
rt
serious offences, the Trial Court or the High Court should not
entertain the bail application of the accused after the
commencement of the trial and grant bail because of some
discrepancy in the testimony. It was observed: –
“14. Ordinarily, in serious offences like rape, murder,
dacoity, etc., once the trial commences and theprosecution starts examining its witnesses, the Court, be
it the Trial Court or the High Court, should be loath toentertain the bail application of the Accused.
15. Over a period of time, we have noticed two things, i.e.,
(i) either bail is granted after the charge is framed and just
before the victim is to be examined by the prosecution
before the trial court, or (ii) bail is granted once the
recording of the oral evidence of the victim is complete by
looking into some discrepancies here or there in the
deposition and thereby testing the credibility of the
victim.
16. We are of the view that the aforesaid is not a correct
practice that the Courts below should adopt. Once the trial::: Downloaded on – 21/07/2026 20:35:33 :::CIS
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2026:HHC:29835commences, it should be allowed to reach its conclusion,
which may either result in the conviction of the Accused or
the acquittal of the Accused. The moment the High Court
exercises its discretion in favour of the Accused and orders.
the release of the Accused on bail by looking into the
deposition of the victim, it will have its own impact on the
pending trial when it comes to appreciating the oral
evidence of the victim. It is only if the trial gets unduly
delayed and that, too, for no fault on the part of the
Accused, the Court may be justified in ordering his release
on bail on the ground that the right of the Accused to have
of
a speedy trial has been infringed.”
15. Similarly, it was held by this Court in Suraj Singh v.
State of H.P., 2022 SCC OnLine HP 268 that the Court exercising
rt
bail jurisdiction cannot appreciate the contradictions in the
evidence. It was observed:
10. Petitioner has placed reliance on the statements of
witnesses already recorded by the learned Special Judge, in
support of his argument to the effect that, from perusal of
these statements, reasonable grounds can be entertained
for concluding prima facie innocence of the petitioner.
The arguments raised on behalf of the petitioner deserve
to be rejected for the reason that this Court, while dealing
with the bail application, will not appreciate the evidence
being recorded during the trial. Undisputedly, only some
of the witnesses out of the entire list of witnesses relied
upon by the prosecution have been examined. In these
circumstances, it is not prudent to form any opinion as to
the innocence or guilt of the petitioner on the basis of such
partial evidence.
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16. Therefore, it is impermissible to release the petitioner
on bail because the victim and her mother have not supported the
.
prosecution’s case.
17. It was submitted that the victim was not a minor on
the date of the incident. This submission cannot be accepted as
correct. The status report mentions that the victim was born on
of
04.03.2011 as per the certificate issued by the school where the
victim is studying, which means that she was aged 14 years on
rt
the date of the incident. Section 94 of the Juvenile Justice (Care
and Protection of Children) Act, 2015, makes the certificate
issued by the school the primary evidence of the date of birth2.
Therefore, the certificate has to be, prima facie, accepted as
correct during the present proceedings.
18. It was submitted that the victim was a consenting
party. She had not reported the matter to any person, and the
matter came to light when the victim got pregnant. This
submission will not help the petitioner. The victim was a minor
and incapable of giving consent. The legislature enacted the
POCSO Act to protect children from themselves as well as from
2
V vs. State of H.P. 2024:HHC:13464
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others who are minded to prey upon them3. The children are
deemed to be incapable of consent, and consent is no defence to
.
the offences punishable under the POCSO Act. Dealing with the
plea of consent under the Sexual Offences Act 2003 (which is
almost similar to the POCSO Act but for the age, which is 13,
under the Sexual Offences Act, 2003 and 18 under the POCSO
of
Act), Baroness Hale of Richmond held in R vs G [2008] UKHL 37as
under:
rt
“44. Section 5 of the 2003 Act has three main features.
First, it singles out penetration by the male penis as one
of the most serious sorts of sexual behaviour towards a
child under 13; second, it applies to such penetration of
a child under 13 of either sex; and thirdly, it calls this
“rape”. This is its novel feature, but it is scarcely a new
idea. The offences of unlawful sexual intercourse under
sections 5 and 6 of the 1956 Act were often colloquially
known as “statutory rape”. This is because the law
regards the attitude of the victim of this behaviour as
irrelevant to the commission of the offence (although it
may, of course, be relevant to the appropriate
sentence). Even if a child is fully capable of
understanding and freely agreeing to such sexual
activity, which may often be doubted, especially with a
child under 13, the law says that it makes no difference.
He or she is legally disabled from consenting.
45. There are a great many good reasons for this: see,
eg, R v Hess; R v Nguyen [1990] 2 SCR 906, per McLachlin
J. It is important to stress that the object is not only to
3
R v Corran [2005] EWCA Crim 192, para 6
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protect such children from predatory adult paedophiles
but also to protect them from premature sexual activity
of all kinds. They are protected in two ways: first, by the
fact that it is irrelevant whether or not they want or
.
appear to want it; and secondly, by the fact that, in the
case of children under 13, it is irrelevant whether or not
the possessor of the penis in question knows the age of
the child he is penetrating.
Xxx
54. In effect, therefore, the real complaint is that the
of
appellant has been convicted of an offence bearing the
label “rape”. Parliament has very recently decided that
this is the correct label to apply to this activity. In my
view, this does not engage the Article 8 rights of the
rt
appellant at all, but if it does, it is entirely justified. The
concept of private life “covers the physical and moral
integrity of the person, including his or her sexual life”
(X and Y v The Netherlands, para 22). This does not
mean that every sexual relationship, however brief or
unsymmetrical, is worthy of respect, nor is everysexual act that a person wishes to perform. It does
mean that the physical and moral integrity of the
complainant, vulnerable by reason of her age if nothingelse, was worthy of respect. The state would have been
open to criticism if it did not provide her with adequateprotection. This it attempts to do by a clear rule that
children under 13 are incapable of giving any sort of
consent to sexual activity and treating penilepenetration as a most serious form of such activity.
This does not, in my view, amount to a lack of respect
for the private life of the penetrating male.
55. Even supposing that it did, it cannot be an
unjustified interference with that right to label the
offence which he has committed “rape”. The word
“rape” does indeed connote a lack of consent. But the
law has disabled children under 13 from giving their
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2026:HHC:29835
consent. So there was no consent. In view of all the
dangers resulting from underage sexual activity, it
cannot be wrong for the law to apply that label even if it
cannot be proved that the child was, in fact, unwilling.
.
The fact that the appellant was under 16 is obviously
relevant to his relative blameworthiness and has been
reflected in the second most lenient disposal available
to a criminal court. But it does not alter the fact of what
he did or the fact that he should not have done it. In my
view, the prosecution, conviction and sentence were
both rational and proportionate in the pursuit of the
of
legitimate aims of the protection of health and morals
and the rights and freedoms of others.”
19. The argument that the minor had misrepresented her
rt
age and the accused was not liable was repelled as under:
“He also commits an offence if he behaves in the same
way towards a child of 13 but under 16, albeit only if he
does not reasonably believe that the child is 16 or over. So
in principle, sex with a child under 16 is not allowed. Whenthe child is under 13, three years younger than that, he
takes the risk that she may be younger than he thinks she
is. The object is to make him take responsibility for whathe chooses to do”
20. Dealing with the dangers of premature sexual
activities, the court held that:
“Penetrative sex is the most serious form of sexual
activity, from which children under 13 (who may well
not yet have reached puberty) deserve to be protected,
whether they like it or not. There are still some people
for whom the loss of virginity is an important step, not
to be lightly undertaken, or for whom its premature loss
may eventually prove more harmful than they
understand at the time. More importantly, anyone who::: Downloaded on – 21/07/2026 20:35:33 :::CIS
20
2026:HHC:29835has practised in the family courts is only too well aware
of the long-term and serious harm, both physical and
psychological, which premature sexual activity can do.
And the harm which may be done by premature sexual.
penetration is not necessarily lessened by the age of the
person penetrating. That will depend upon all the
circumstances of the case, of which his age is only one.”
21. It was admitted that the prosecution had failed to
complete the evidence, and the petitioner’s right to a speedy trial
of
was being violated. This submission will not help the petitioner.
The petitioner has been charged with the commission of offences
rt
punishable under Sections 4 and 6 of the POCSO Act. Section 6
provides for rigorous imprisonment, which will not be less than
20 years, but which may extend to imprisonment for life, which
means the imprisonment for the remainder of the natural life of
that person. Thus, the offence is heinous and severely
punishable. It was laid down by the Hon’ble Supreme Court in
Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P.,
(1978) 1 SCC 240: 1978 SCC (Cri) 115: 1977 SCC OnLine SC 327 that
when the punishment is severe, the person is not entitled to bail.
It was observed at page 244:
“6. Let us have a glance at the pros and cons and the true
principle around which other relevant factors must
revolve. When the case is finally disposed of and a person
is sentenced to incarceration, things stand on a different::: Downloaded on – 21/07/2026 20:35:33 :::CIS
21
2026:HHC:29835footing. We are concerned with the penultimate stage, and
the principal rule to guide release on bail should be to
secure the presence of the applicant who seeks to be
liberated, to take judgment and serve a sentence in the.
event of the Court punishing him with imprisonment. In
this perspective, the relevance of considerations is
regulated by their nexus with the likely absence of the
applicant for fear of a severe sentence, if such be plausiblein the case. As Erle. J. indicated that when the crime
charged (of which a conviction has been sustained) is of
the highest magnitude and the punishment for it assignedof
by law is of extreme severity, the Court may reasonably
presume, some evidence warranting, that no amount of
bail would secure the presence of the convict at the stage
of judgment, should he be enlarged. [ Mod. Law Rev. p. 50
rt
ibid., 1852 I E & B 1] Lord Campbell, C.J., concurred in this
approach in that case, and Coleridge J. set down the order
of priorities as follows: [Mod. Law Rev. ibid., pp. 50-51]“I do not think that an accused party is detained in
custody because of his guilt, but because there are
sufficient probable grounds for the charge againsthim as to make it proper that he should be tried, and
because the detention is necessary to ensure his
appearance at trial …. It is a very important elementin considering whether the party, if admitted to bail,
would appear to take his trial; and I think that incoming to a determination on that point, three
elements will generally be found the most
important: the charge, the nature of the evidence bywhich it is supported, and the punishment to which
the party would be liable if convicted. In the present
case, the charge is that of wilful murder; the
evidence contains an admission by the prisoners of
the truth of the charge, and the punishment of the
offence is, by law, death.”
7. It is thus obvious that the nature of the charge is the
vital factor, and the nature of the evidence also is
pertinent. The punishment to which the party may be
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liable, if convicted or conviction is confirmed, also bears
upon the issue.
22. Therefore, the petitioner is not entitled to bail
.
considering the severity of the punishment.
23. No other point was urged.
24. In view of the above, the present petition fails and is
dismissed.
of
25. The observation made herein before shall remain
confined to the disposal of the instant petition and will have no
rt
bearing whatsoever on the merits of the case.
( Rakesh Kainthla )
Judge
21st July, 2026
(Ravinder)
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