“Criminality, If Any, Stood Washed Off”: Allahabad HC Grants Bail To POCSO Convict Who Married Prosecutrix And Had Child | Finds No Bar To Relief Pending Appeal
Isabella Mariam
The High Court of Allahabad Single Bench of Justice Rajeev Misra granted bail to a convict sentenced under Section 376 IPC and Sections 5(j)(ii)/6 of the POCSO Act. The court, while deciding an application for suspension of sentence, directed that the applicant-appellant be released on bail during the pendency of the appeal. It was observed that the convict had since married the prosecutrix, and a child had been born from the wedlock. The court ordered that the recovery of fine awarded by the trial court would also remain stayed until further orders.
The criminal appeal was filed challenging the judgment and order dated 23.12.2024 passed by the Additional Sessions Judge/Additional Special Judge (POCSO Act), Court No.-3, Firozabad. The Sessions Court had convicted the appellant under Section 376 of the IPC and Section 5(j)(ii)/6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The conviction arose from Sessions Case No. 1824 of 2023, based on Case Crime No. 446 of 2023 registered at Police Station Shikohabad, District Firozabad.
As per the impugned judgment, the applicant-appellant was sentenced to twenty years of rigorous imprisonment along with a fine of Rs. 30,000 for the offence under Section 5(j)(ii)/6 of the POCSO Act. In default of payment, he was directed to undergo an additional two years of rigorous imprisonment.
The appeal was filed with an application for suspension of sentence during its pendency. It was submitted that the appellant had been granted bail during the trial but was taken into custody following his conviction on 23.12.2024. He had remained incarcerated since that date.
The learned Senior Counsel argued that, despite being a named and convicted accused, the applicant-appellant was eligible for bail during the appeal due to a significant development. He contended that the appellant had solemnized marriage with the prosecutrix according to Hindu rites and customs, making her his legally wedded wife. It was further submitted that they had cohabited as husband and wife, and a child named Puneet was born out of their marriage.
In support of his submission, the Senior Counsel cited three decisions of the Supreme Court: (i) K. Dhandapani vs. State by the Inspector of Police, 2022 SCC OnLine SC 1056, (ii) Mafat Lal vs. State of Rajasthan, (2022) 6 SCC 589, and (iii) Shriram Urav vs. State of Chhattisgarh, Criminal Appeal No. 41 of 2024, decided on 30.01.2025. In these cases, the Apex Court had quashed proceedings against similarly situated accused persons who had subsequently married the prosecutrix.
In K. Dhandapani, the Supreme Court, while exercising powers under Article 142 of the Constitution, set aside the conviction and sentence of an appellant who had married the prosecutrix, despite the prosecutrix being a minor at the time of the offence. The court noted the birth of two children from the wedlock and the prosecutrix’s statement that she was leading a happy married life. The conviction was set aside in the peculiar facts of that case.
Relying on this and the other cited judgments, the Senior Counsel submitted that no exception could be carved out in the present matter. The facts being similar, he argued that the impugned judgment could not be sustained and was liable to be set aside. He further submitted that since the appeal was prima facie liable to be allowed, the applicant-appellant should be granted bail following the principle laid down in Omprakash Sahni vs. Jai Shankar Chaudhary and Another, (2023) 6 SCC 123.
It was also stated that the applicant-appellant was a man of clean antecedents with no prior criminal record apart from the present conviction. He had already undergone over six months of incarceration. The counsel assured that if granted bail, the applicant-appellant would not misuse the liberty and would cooperate with the hearing of the appeal.
On the other hand, the learned Additional Government Advocate for the State (opposite party-1) and Mr. Ram Badan Maurya, counsel for the first informant (opposite party-4), opposed the bail application. They contended that the applicant-appellant was a named and convicted accused and should not be granted any relief. It was submitted that the prosecutrix was a minor, aged about 17 years and a few months, on the date of the incident, and hence a child under the POCSO Act.
They argued that the criminality committed by the applicant-appellant could not be nullified by a subsequent marriage. Referring to the impugned judgment, it was stated that the crime was not only illegal but also immoral and a crime against society. However, they could not refute the factual and legal submissions made by the applicant’s counsel.
Justice Rajeev Misra, after hearing the parties and examining the record, noted: "Applicant-appellant is a named and convicted accused... he has been convicted under Section 376 IPC and Section 5(j)(ii)/6 of the POCSO Act. Admittedly, the prosecutrix was a child within the meaning of the term child as defined under the POCSO Act on the date the alleged criminality was committed."
The court referred to the date of birth recorded in the High School Certificate to confirm that the prosecutrix was below 18 years at the relevant time. The court stated: "Offence complained of against applicant/appellant is not only illegal but also immoral inasmuch as applicant/appellant is guilty of dislodging the modesty of the prosecutrix, who was a young and innocent girl below 18 years of age."
However, the court also noted the developments that occurred after the incident. Specifically, it recorded: "It has come in evidence... that she has solemnized marriage with the applicant/appellant... therefore, in view of above, the criminality, if any, committed by applicant/appellant stood washed of."
The court further stated: "The ratio laid down by the Apex Court in the cases of (1) K. Dhandapani (Supra), (ii) Mafat Lal vs. State of Rajasthan (Supra), and (iii) Shriram Urav (Supra) stands clearly attracted."
It was also noted that: "From the wedlock of the applicant/appellant and the prosecutrix, a son was also born, the parties were living together as a happy family."
The court recorded that: "The learned A.G.A. for State-opposite party-1 and Mr. Ram Badan Maurya... could not point out from the record any such distinguishing feature on the basis of which, the ratio laid down by the Apex Court... could be said to be inapplicable."
Taking into account the clean antecedents, period of incarceration, and the evidence of marriage and parenthood, the court concluded: "This Court finds that applicant-appellant has made out a case for grant of bail."
The Court ordered: "Let the applicant/appellant be released on bail in Case Crime No. 446 of 2023, under Section 376 IPC and Section 5(j)(ii)/6 POCSO Act, Police Station-Shikohabad, District-Firozabad on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned."
Additionally, the court directed:"Considering the facts and circumstances of the case, as an interim measure, it is hereby provided that until further orders of this Court, the recovery of fine awarded by Court below under the impugned judgment shall remain stayed."
Advocates Representing the Parties:
For the Petitioner: Mr. Kamal Krishna, Senior Counsel, assisted by Mr. Ghan Shyam Das
For the Respondents: Mr. Ram Badan Maurya, Advocate; Learned A.G.A. for State
Case Title: XXX vs. State of U.P. and 3 Others
Case Number: Criminal Appeal No. 272 of 2025
Bench: Justice Rajeev Misra
