BISHNU KIRTONIYA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Sec. 439 of the Code of Criminal Procedure filed by the petitioner who is in custody from 07/10/2022 in connection with Mekhliganj P.S. Case No - 333 of 2022 dtd. 6/10/2022 under Ss. 363/365/34 of the Indian Penal Code read with Sec. 6 of the Protection of Children from Sexual Offences Act 2012. It is the contention of the petitioner that there is no iota of evidence to corroborate impugned claim of the defacto complainant. It is further contended that he is in custody for a protracted period as an under trial prisoner and without any contribution from his end and in this case charge sheet has been filed and there is no possibility of immediate conclusion of the case. It is also contended that the alleged Victim Girl had romantic relationship but the father of the said Victim Girl was against the said relationship. Learned Advocate appearing for the state objects the grant of bail. Heard Learned Advocate for the petitioner and Learned Advocate appearing for the state perused the petition filed and materials in the case diary. Upon perusing the materials in the case diary it appears that the case was instituted against the petitioner under Sec. 363 and 365 of the Indian Penal Code on the complaint of the father of the Victim Girl. Subsequently Sec. 4/6 of POCSO Act 2012 was added. Upon further perusal of the statement made under Sec. 164 CrPC by the Victim Girl it will appear that there was love affairs between the petitioner and the victim girl and the victim girl left with the petitioner, and resided with him for a period of 3 months. It will further appear that the defacto complainant, father of the victim girl knew about the love affairs but did not consent the marriage of the victim girl with the petitioner as the victim girl was a minor. Although the victim girl stated about physical relationship with the petitioner but she refused to undergo medical test. Thus from the materials in the case diary it will appear that the act of the petitioner of residing with the victim girl is not all on a sudden but as a result of love affairs between the petitioner and the victim girl for last six months prior to lodging complaint and it was within the knowledge of the parents of the victim girl. As the matter involves romantic relationship not similar to other cases of POCSO it should be measured slightly on a different scale on the basis of a judicial decision which is discussed below. In the case of Vijayalakshmi VS State being CrI.O.P. No. 232 of 2021 and CrI MP No. 109 of 2021 the Hon'ble Madras High Court observed as follows:

(2.) The Hon'ble Court further observed as follows:

(3.) Upon perusal of the materials in the case diary although it would not be proper to make observation on the merits of the case but it should be decided as to whether petitioner should be enlarged on bail. In order to decide as to whether petitioner should be enlarged on bail it is necessary to consider some judicial pronouncement.