# Anurudh v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1928
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-29
- **Case number:** Criminal Misc. Bail Application No. 4880 of 2024
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anurudh-v-state-of-u-p-ors-51910
- **Pages:** 29

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 164, 164-A
& 439 - Indian Penal Code, 1860 -
Sections

363,
366
&
376(3)
-
The Protection of Children from Sexual
Offences (POCSO) Act, 2012 - Sections
3, 4(2) & 27 - Constitution of India,1950
- Article 21, 227 - juvenile justice (care
and protection of children) Act, 2015-
Section 94 - Application for Bail - Bail
jurisdiction - the question of law - nature of
legal duty cast on the police to draw up a
medical report determining the age of victim
while investigating POCSO Act offences - in
the instant case, the medical report pertaining
to the victim's age as contemplated in Section
164-A Cr. PC r/w Section 27 of the POCSO Act,
was not produced by the police authority -
court finds that, the issue of medical
determining the Victim's Age in POCSO Act
offences has been regularly vexing the court's
- held, (i) in the light of law laid down by the
Full Bench of this Court in Chandrapal Singh
Case, it can be safely St.d that the directions
contained in Pradeep Kumar Chauhan' case
are
not
binding
judicial
authority
for
determination of the Victim's Age by the
competent medical authority u/s 164-A r/w
u/s 27 of the POCSO Act, (ii) the police
authority are directed to strictly comply with
the direction of tis court in Aman' Case and
ensure its compliance, (iii) lack of compliance
of the directions of this case in Monish's Case
and lately Aman's Case by the trial courts
while deciding the bail applications under the
5 All. Anurudh Vs. State of U.P. & Ors.
1929
POCSO Act, is being noticed regularly which
resulting in repeated miscarriage of justice as
in this case, (iv) A solemn obligation is cast
by the constitution on the high Court to
nurture the autonomy of trial judges to enable
them to act independently and to build the
capacity of the trial judges to judge fairly and
to foster the esteem of the trial judges to
fortify the citizens' faith in the judiciary -
consequently, present bail application is
allowed with certain directions to the St.
authorities and also to the trial court for
necessary action and compliance, accordingly.
(Para - 38, 39, 40, 48, 49, 52, 53, 54, 55)

Bail Application Allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,784 of 97,421. This is a partial read: ask again with offset=39784 for what follows._

1928 INDIAN LAW REPORTS ALLAHABAD SERIES
per the said guidelines and principles. On
appearance of accused through counsel
before Court would always amount to
deemed custody and, thus, in terms of the
above judgements, their bail application
was required to be decided, consequent
upon their appearance through counsel
before the court on issuance of the process,
without the applicants being taken into
physical custody or by granting them
interim bail till the disposal of their bail
application.

15.

Having
considered
the
submissions of learned counsel for the
applicants and after going through the
record of the case as well as the case laws
dealt herein above, it is crystal clear that if
the conditions mentioned in the order of the
Hon'ble Supreme Court in Satendra
Kumar Antil (supra) is fulfilled, the
physical presence of the accused person to
the custody of the court is not required for
considering of their bail under Section 439
Cr.P.C. for the offences enumerated in
Category 'A'.

16. Accordingly, the present 2nd
Anticipatory Bail Application is disposed
of with the direction to the applicants to
move a fresh bail application before the
court concerned under Section 439 Cr.P.C.
within 15 days from today and in case the
fresh bail application is moved by the
applicants, the court concerned shall
dispose of the same without insisting the
applicants to submit themselves to the
custody of the court, strictly in accordance
with law laid down by the Apex Court in the
above mentioned cases.
----------
(2024) 5 ILRA 1928
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.05.2024

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc. Bail Application No. 4880 of 2024

Anurudh ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Fakhr uz Zaman

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 164, 164-A
& 439 - Indian Penal Code, 1860 -
Sections

363,
366
&
376(3)
-
The Protection of Children from Sexual
Offences (POCSO) Act, 2012 - Sections
3, 4(2) & 27 - Constitution of India,1950
- Article 21, 227 - juvenile justice (care
and protection of children) Act, 2015-
Section 94 - Application for Bail - Bail
jurisdiction - the question of law - nature of
legal duty cast on the police to draw up a
medical report determining the age of victim
while investigating POCSO Act offences - in
the instant case, the medical report pertaining
to the victim's age as contemplated in Section
164-A Cr. PC r/w Section 27 of the POCSO Act,
was not produced by the police authority -
court finds that, the issue of medical
determining the Victim's Age in POCSO Act
offences has been regularly vexing the court's
- held, (i) in the light of law laid down by the
Full Bench of this Court in Chandrapal Singh
Case, it can be safely St.d that the directions
contained in Pradeep Kumar Chauhan' case
are
not
binding
judicial
authority
for
determination of the Victim's Age by the
competent medical authority u/s 164-A r/w
u/s 27 of the POCSO Act, (ii) the police
authority are directed to strictly comply with
the direction of tis court in Aman' Case and
ensure its compliance, (iii) lack of compliance
of the directions of this case in Monish's Case
and lately Aman's Case by the trial courts
while deciding the bail applications under the
5 All. Anurudh Vs. State of U.P. & Ors.
1929
POCSO Act, is being noticed regularly which
resulting in repeated miscarriage of justice as
in this case, (iv) A solemn obligation is cast
by the constitution on the high Court to
nurture the autonomy of trial judges to enable
them to act independently and to build the
capacity of the trial judges to judge fairly and
to foster the esteem of the trial judges to
fortify the citizens' faith in the judiciary -
consequently, present bail application is
allowed with certain directions to the St.
authorities and also to the trial court for
necessary action and compliance, accordingly.
(Para - 38, 39, 40, 48, 49, 52, 53, 54, 55)

Bail Application Allowed. (E-11)

List of Cases cited:

1. Gudikanti Narasimhulu & ors. Vs Public
Prosecutor, High Court of Andhra Pradesh
(1978) 1 SCC 240,

2. Mohd. Muslim @ Hussain Vs St. (NCT of
Delhi) Special Leave Petition (Criminal) No. 915
of 2023,

3. Ajeet Chaudhary Vs St. of U.P. & anr. - 2021
SCC OnLine All 17,

4. Junaid Vs St. of U.P. & anr. - 2021 SCC OnLine
All 463

5. Monish Vs St. of U.P. & ors.- Criminal Bail
Application No. 55026 of 2021

6. Anil Gaur @ Sonu Tomar Vs St. of U.P. - 2022
SCC OnLine All 623

7. Maneesh Pathak Vs St. of U.P. - 2023
SCCOnLine All 64

8. Aman @ Vansh Vs St. of U.P. & ors. - Criminal
Misc. Bail Application No.2322 of 2024

9. Anil Gaur @ Sonu @ Sonu Tomar Vs St. of U.P.
- 2022 SCC Online All 623

10. Bhanwar Singh @ Karamvir Vs St. of U.P. -
2023 SCC Online All 734,

11. (Noor Alam Vs St. of U.P. - Criminal Misc. Bail
Application No.53159 of 2021,
12. Monish Vs St. of U.P. & ors.- (2024) 6 ADJ
361,

13. Aman @ Vansh vs St. of U.P.1 - Criminal Misc.
Bail Application No.2322 of 2024,

14. Pradeep Kumar Chauhan & anr. Vs St. of U.P.
and 3 others - Habeas Corpus Writ Petition
No.733 of 2020,

15. Atul Mishra Vs St. of U.P. & ors. - 2022
SCCOnline All 420,

16. Chandrapal Singh Vs St. of U.P. & anr. - 2023
SCC OnLine All 2443,

17. St. of Orissa Vs Sudhansu Sekhar Misra &
ors.- AIR 1968 SC 647

18. St. of Assam Vs Ranga Muhammad & ors.-
(1967) 1 SCR 454

19. H.H. Maharajadhiraja Madhav Rao Jivaji Rao
Scindia Bahadur of Gwalior, etc. Vs U.O.I. & anr.
- (1971) 1 SCC 85,

20. Dalbir Singh & ors. Vs St. of Punj. - (1979) 3
SCC 745,

21. Krishena Kumar Vs U.O.I. & ors.- 1990 (4)
SCC 207,

22. St. of Orissa & ors.Vs Md. Illiyas - 2006 (1)
SCC 275,

23. Regional Manager & anr. Vs Pawan Kumar
Dubey - (1976) 3 SCC 334,

24. Delhi Airport Metro Express Private Limited
Vs Delhi Metro Rail Corporation - (2022) 9 SCC
286,

25. U.O.I. & ors.Vs Dhanwanti Devi & ors.-
(1996) 6 SCC 44,

26. Islamic Academy Education & anr. Vs St. of
Karnataka & ors.- (2003) 6 SCC 697,

27.
Executive
Engineer,
Dhenkanal
Minor
Irrigation Division Vs N.C. Budharaj [(2001) 2
SCC 721,

28. T.M.A. Pai Foundation - (2002) 8 SCC 481,
1930 INDIAN LAW REPORTS ALLAHABAD SERIES
29. Natural Resources Allocation, In Re, Special
Reference No.1 of 2012 - (2012) 10 SCC 1,

30. Sanjay Singh & anr. Vs U.P. Public Service
Commission, Allahabad & anr. - (2007) 3 SCC
720,

31. Commissioner of Income Tax Vs Sun
Engineering Works (P) Ltd. - (1992) 4 SCC 363,

32. Ambica Quarry Works & ors. Vs St. of Guj.
& ors.- (1987) 1 SCC 213,

33. Prakash Amichand Shah Vs St. of Gujarat &
ors.- 1986 (1) SCC 581

34. Delhi Administration in the NCT of Delhi Vs
Manohar Lal - (2002) 7 SCC 222,

35. Divisional Controller, KSRTC Vs Mahadeva
Shetty - (2003) 7 SCC 197,

36. Ashwani Kumar Singh Vs U.P. Public Service
Commission & ors.- (2003) 11 SCC 584,

37. Director of Settlement, A.P. & ors.Vs M.R.
Apparao & anr. - (2002) 4 SCC 638,

38. Gasket Radiator Pvt. Ltd. Vs Employees' St.
Insurance Corporation & anr. - (1985) 2 SCC 68,

39. Sreenivasa General Traders & ors. Vs St. of
Andhra Pradesh & ors.- (1983) 4 SCC 353,

40. Government of India Vs Workmen and St.
Trading Corporation & ors.- (1997) 11 SCC 641,

41. Junaid Vs St. of U.P. & anr. - 2021 (6) ADJ
511,

42. Arvind Singh Vs St. of U.P. Thru. Prin. Secy.
Home Deptt. - Application U/S 482 No.2613 of
2023.

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The judgment is being structured in
the following conceptual framework to
facilitate the discussion:

I
Introduction
II
Bail Jurisdiction : Scope
III
Facts
IV
Submissions of learned counsels

V
Age of victim: Section 164-A of Cr.P.C.,
Section 27 of POCSO Act, Judgements in
Monish Vs. State of U.P. and others; Aman @
Vansh v. State of U.P. and 3 others; Atul Mishra
v. State of U.P. and 3 others.

VI
Judgement in Pradeep Kumar Chauhan and
another v. State of U.P. and 3 others: Non
applicability to police investigations into
POCSO Act offences
VII
Conclusions & Directions

VIII
Order on Bail Application

IX
Post Script and Directions

X
Appendix
I. Introduction:

I. Introduction:

2. The question of law which arises
for consideration in this bail application is
the nature of the legal duty cast on the
police to draw up a medical report
determining the age of a victim while
investigating POCSO Act offences. The
jurisdiction of this Court to determine this
question will predicate the discussion on
the merits of the bail.

II. Bail Jurisdiction: Scope

3. Right of bail is vested by virtue of
Section
439
of
Code
of
Criminal
Procedure,19731.

4. With coming of the Constitution
and development of constitutional law, the
statutory domain of bails was transformed
into a constitutional jurisdiction as well.
The right to bail is derived from statute but
cannot be removed from constitutional
oversight. The right to seek bail is
irretrievably embedded in the fundamental
right of liberty enshrined under Article 21
5 All. Anurudh Vs. State of U.P. & Ors.
1931
of the Constitution of India by holdings of
constitutional courts.

5. Good authority has long entrenched
the right of an accused to seek bail in the
charter of fundamental rights assured by the
Constitution of India.

6. Bail jurisprudence was firmly
ensconced in the constitutional regime of
fundamental
rights
in
Gudikanti
Narasimhulu and Others Vs. Public
Prosecutor, High Court of Andhra
Pradesh2. Casting an enduring proposition
of law in eloquent speech, V.R. Krishna
Iyer, J. held:

"1. Bail or jail?" - at the pre-trial
or post-conviction stage - belongs to the
blurred area of the criminal justice system
and largely hinges on the hunch of the
Bench, otherwise called judicial discretion.
The Code is cryptic on this topic and the
Court prefers to be tacit, be the order
custodial or not. And yet, the issue is one of
liberty, justice, public safety and burden of
the public treasury, all of which insist that a
developed jurisprudence of bail is integral
to a socially sensitized judicial process. As
Chamber Judge in this summit court I have
to deal with this uncanalised case-flow, ad
hoc response to the docket being the
flickering candle light. So it is desirable
that the subject is disposed of on basic
principle, not improvised brevity draped as
discretion. Personal liberty, deprived when
bail is refused, is too precious a value of our
constitutional system recognised under
Article 21 that the curial power to negate it
is a great trust exercisable, not casually but
judicially, with lively concern for the cost
to the individual and the community. To
glamorize
impressionistic
orders
as
discretionary may, on occasions, make a
litigative gamble decisive of a fundamental
right. After all, personal liberty of an
accused
or
convict
is
fundamental,
suffering lawful eclipse only in terms of
"procedure established by law". The last
four words of Article 21 are the life of that
human right."

7. More recently the interplay of
constitutional liberty assured under Article
21 and statutory right of bail of an
undertrial prisoner was affirmed by the
Supreme Court in Mohd. Muslim @
Hussain Vs. State (NCT of Delhi)3.

8. Engagement of fundamental rights
in bail jurisprudence is a constant in
constitutional law. The right of bail has
statutory origins but can never be isolated
from its constitutional moorings.

9. The aforesaid authorities establish
the undeniable linkage between right to
seek bail and the fundamental right to
personal liberty. Every prisoner has a
fundamental right to file an application for
bail before the competent court as per law
and without delay.

10.

While
sitting
in
bail
determination, this Court is not denuded of
its constitutional status. The High Court is
a court of record and a constitutional court
irrespective of the nomenclature of the
jurisdiction it is exercising. Needless to add
that the High Court always exercises its
jurisdiction as per law. While deciding bail
applications the High Court exercises a
composite jurisdiction of statutory powers
and constitutional obligations. At times
legal issues which directly impinge on the
fair administration of justice arise in bail
jurisdiction. The High Court cannot neglect
consideration of such issues on the footing
that they are beyond the scope of bail
jurisdiction. The High Court always
1932 INDIAN LAW REPORTS ALLAHABAD SERIES
possesses the necessary powers to decide
such issues for dispensing fair justice and to
realize the fundamental rights of an accused
in bail jurisdiction. Refusal to decide the
said issues would amount to abdication of
constitutional obligations of this Court.
Issues arising in the instant case (and those
referred in the judgment) directly impact
the right of a prisoner to seek bail. They
have to be decided by this Court with clarity
in lawful exercise of bail jurisdiction and in
the interests of equal justice.

11. The judgements rendered by this
Court in Ajeet Chaudhary v. State of U.P.
and another4, Junaid v. State of U.P. and
another5, Monish v.State of U.P. and
others6, Anil Gaur @ Sonu Tomar v.
State of U.P.7 & Maneesh Pathak v.
State of U.P.8] enable the court in bail
jurisdiction to decide legal issues which
arise in the facts and circumstances of the
case and impede fair administration of
justice or prevent realization of the right of
bail of an accused accruing from statute or
threaten to infringe the personal liberties of
the accused vested by the Constitution.

12. While examining the scope of
powers of this Court to decide legal issues
in bail jurisdiction this Court in Aman @
Vansh v. State of U.P. and 3 others9 held
as under:

"This Court has consistently held
that while sitting in the bail determination
the High Court is not denuded of its
constitutional status. The bail jurisdiction
though created under the statute is also a
constitutional
jurisdiction
of
first
importance since the most precious right of
life and liberty are engaged in the process
of consideration of bail. Consequently
when legal issues which directly impact the
life and liberty of a citizen arise during
consideration of a bail application, the
Court has to squarely deal with the said
(sic) issues."

[Also see: i. (Anil Gaur @ Sonu
@ Sonu Tomar v. State of U.P.10)

ii.
(Bhanwar
Singh
@
Karamvir v. State of U.P.11)

iii. (Noor Alam v. State of
U.P.12).]

III. Facts:

13. In the instant case the age of the
victim as depicted in the prosecution
documents was contested in light of the
judgement of this Court in Monish Vs.
State of U.P. and others13. The medical
report pertaining to the victim's age as
contemplated in Section 164-A Cr.P.C.
read with Section 27 of the POCSO Act was
not produced by the police authorities.

14. Following the established practice
this Court directed that the medical report
of the victim's age be got drawn up by the
competent medical officer/Chief Medical
Officer, Jalaun in light of Section 164-A of
Cr.P.C. read with Section 27 of the POCSO
Act. [See: Aman @ Vansh vs State of
U.P.14]

15. The issue of medical report
determining the victim's age in POCSO
Act offences has been regularly vexing the
Courts, and hence is liable to be determined
before deciding the bail application on
merits.

IV.
Submissions
of
learned
counsels:

16. Shri Paritosh Kumar Malviya,
learned A.G.A.-I submits that in view of the
judgement rendered by this Court in
Pradeep Kumar Chauhan and another v.
5 All. Anurudh Vs. State of U.P. & Ors.
1933
State of U.P. and 3 others15 the police
authorities
cannot
get
the
medical
examination of the victim conducted to
determine her age. Hence the said medical
report was not got drawn up by police in the
instant case. Though in his customary
fairness the learned AGA-I has referenced
all relevant provisions of law including
Section 164-A Cr.P.C. read with Section 27
of POCSO Act. According to the learned
A.G.A.-I, the legal position regarding
applicability of Pradeep Kumar Chauhan
(supra) to POCSO Act offences and
investigations needs clarification.

17. Per contra, Shri Shams uz Zaman,
learned counsel holding brief of Shri Fakhr
uz Zaman, learned counsel for the applicant
contends that the judgement of this Court in
Pradeep Kumar Chauhan (supra) is not
a binding precedent for the purposes of
determination the age of the victim under
Section 164-A of the Cr.P.C. read with
Section 27 of the POCSO Act. The Court
rightly called for the medical report
regarding the victim's age on account of the
failure of the police authorities to do so and
to uphold the said provisions of law. The
order of the Court calling for the medical
report of the victims age was consistent
with the law laid down in Aman (supra).
Aman (supra) is a binding authority for
medical determination of the victim's age in
POCSO Act offences. In a bail application
the victim's age has to be determined by a
conjoint reading of Monish (supra) and
Aman (supra).

18. Heard the learned counsel for the
parties.

V. Age of victim: Section 164-A of
Cr.P.C., Section 27 of POCSO Act,
Judgements in Monish Vs. State of U.P.
and others and Aman @ Vansh v. State
of U.P. and 3 others; Atul Mishra v.
State of U.P. and 3 others.16

19.

Large
variations
in
the
documents pertaining to the victim's age
are being noticed in an overwhelming
number of cases under the POCSO Act.
Challenges laid to the victim's age as
depicted in the prosecution case are also a
regular feature in bail applications under
the POCSO Act. Victim's age related
documents are often put under a cloud in
bail hearings. Medical report determining
the victim's age as per Section 164-A of
Cr.P.C. read with Section 27 of the
POCSCO Act thus becomes critical even
in bail matters. In fact in POCSO Act
offences the victim's age is also a
jurisdictional issue.

20. Section 164-A of the Code of
Criminal Procedure Code as well as
Section 27 of the POCSO Act are extracted
hereunder for ease reference:

"Section 164-A of Cr.P.C.
Medical examination of the victim of
rape.-(1) Where, during the stage when an
offence of committing rape or attempt to
commit rape is under investigation, it is
proposed to get the person of the woman
with whom rape is alleged or attempted to
have
been
committed
or
attempted,
examined by a medical expert, such
examination shall be conducted by a
registered medical practitioner employed in
a hospital run by the Government or a local
authority and in the absence of such a
practitioner, by any other registered
medical practitioner, with the consent of
such woman or of a person competent to
give such consent on her behalf and such
woman shall be sent to such registered
medical practitioner within twenty-four
hours from the time of receiving the
1934 INDIAN LAW REPORTS ALLAHABAD SERIES
information relating to the commission of
such offence.

(2)
The
registered
medical
practitioner, to whom such woman is sent
shall, without delay, examine her person
and prepare a report of his examination
giving the following particulars, namely-

(i) the name and address of the
woman and of the person by whom she was
brought;

(ii) the age of the woman;

(iii) the description of material
taken from the person of the woman for
DNA profiling;

(iv) marks of injury, if any, on the
person of the woman;

(v) general mental condition of
the woman; and

(vi) other material particulars in
reasonable detail.

(3)
The
report
shall
state
precisely the reasons for each conclusion
arrived at.

(4) The report shall specifically
record that the consent of the woman or of
the person competent, to give such consent
on her behalf to such examination had been
obtained.

(5)
The
exact
time
of
commencement and completion of the
examination shall also be noted in the
report.

(6)
The
registered
medical
practitioner shall, without delay forward
the report to the investigating officer who
shall forward it to the Magistrate referred to
in section 173 as part of the documents
referred to in clause (a) of Sub-Section (5)
of that section.

(7) Nothing in this section shall
be construed as rendering lawful any
examination without the consent of the
woman or of any person competent to give
such consent on her behalf."

"Section 27 of POCSO Act.
Medical examination of a child-(1) The
medical examination of a child in respect of
whom any offence has been committed
under this Act, shall notwithstanding that a
First Information Report or complaint has
not been registered for the offences under
this Act, be conducted in accordance with
section 164A of the Code of Criminal
Procedure, 1973.

(2) In case the victim is a girl
child, the medical examination shall be
conducted by a woman doctor.

(3) The medical examination
shall be conducted in the presence of the
parent of the child or any other person in
whom the child reposes trust or confidence.

(4) Where, in case the parent of
the child or other person referred to in subsection (3) cannot be present, for any
reason, during the medical examination of
the child, the medical examination shall be
conducted in the presence of a woman
nominated by the head of the medical
institution."

21. Section 164-A of Cr.P.C. read
with Section 27 of the POCSO Act provide
for a specific method to determine the age
of the victim in POCSO Act offences. The
said provisions underscore the importance
of medical age determination of victims
under the POCSO Act. Age determined
under Section 164-A of Cr.P.C. read with
Section 27 of the POCSO Act is not an
exercise in futility, and cannot be
excluded from consideration by courts.
Omission by the police to get the medical
report of age drawn up during the
investigation and neglect of the said
report by the court while deciding the bail
application will render the said statutory
provisions redundant and negate the
scheme of the POCSO Act.
5 All. Anurudh Vs. State of U.P. & Ors.
1935

22. This Court in Aman (supra) held
that Section 164-A Cr.P.C. read with
Section 27 of the POCSO Act insofar as
they contemplate medical determination of
the age of the victim are mandatory. Aman
(supra) accordingly directed the police
authorities to get the medical report
determining the victim's age drawn up by
the competent medical authority at the start
of the investigations into POCSO Act
offences.

23. Age of a child victim of a sexual
offence is also liable to be determined in
light of the procedure laid down in Section
94 of the Juvenile Justice (Care and
Protection of Children) Act (as applicable
to the POCSO Act). This Court in had
examined the manner and scope of
applicability of Section 94 of the Juvenile
Justice (Care and Protection of Children)
Act to determine the age of victims in bails
under the POCSO Act offences. In Monish
(supra) due weight was given to the
medically determined age of the victim
apart
from
consideration
of
other
documentary evidences of age including
those referenced in Section 94 of the of the
Juvenile Justice (Care and Protection of
Children) Act.

25. The implementation of the
mandatory provisions of Section 164-A of
the Cr.P.C. read with Section 27 of the
POCSO Act and compliance of Aman
(supra) are imperative necessities to secure
the ends of justice. Medical determination
the age of victims is based on scientific
parameters and has a high standing in
courts. Medical report of the victim's age
given by the competent medical authority
in POCSO Act cases has a statutory basis
and is a reliable document to assist the court
in forming an opinion or conclusion about
her
age
even
while
deciding
bail
applications under the POCSO Act.
Particularly in bails where the accused
shows
that
prosecution
documents
pertaining
to
the
victim's
age
are
contradictory, unreliable or otherwise
rendered doubtful for credible reasons.
[See: Monish Vs. State of U.P. and
others] Failure to consider or to accord due
weight or to discord the same without good
cause to medical report determining the
victim's age contravenes the law and
vitiates the order of court.

26. The predicaments faced by this
Court while examining the age of the victim
in a bail application under the POCSO Act
were resolved by this Court in the
judgement rendered in Monish (supra).
However, the dilemma of the Court persists
on account of the recurrent failure of the
police authorities to get the victim's age
determined by the competent medical
authority during investigations of POCSO
Act offences. As seen earlier this omission
of the police authorities is in the teeth of
Section 164-A Cr.P.C. read with Section 27
of the POCSO Act and also violates the
explicit judicial directions in Aman
(supra).

27. The determination of victim's age
in a bail under POCSO Act offences has to
be made upon an integrated reading of
Section 94 of the of the Juvenile Justice
(Care and Protection of Children) Act and
Section 164-A of Cr.P.C. read with Section
27 of the POCSO Act in light of the
judgements of this Court in Monish
(supra) and Aman (supra).

28. Monish (supra) contemplates
consideration
of
various
documents
pertaining to the victim's age in bail
proceedings. Aman (supra) reinforced the
significance
of
the
medical
age
1936 INDIAN LAW REPORTS ALLAHABAD SERIES
determination in the scheme of the POCSO
Act. The trial court has to make an opinion
on the credibility of the respective
documents
while
deciding
the
bail
application. In appropriate cases the age of
the victim determined by the competent
medical authority can prevail over other
age related documents (including school
records). Infact in the instant case this
Court has relied upon the medical
determination of the victim's age in
preference to the school records pertaining
to her age.

29. False depiction of the victim's age
is a favoured tactic used by unscrupulous
litigants to frame innocent persons under
the stringent provisions of the POCSO Act.
False cases under the POCSO Act are an
abuse of the process of court which
frustrate the laudable intent of the said
enactment. As a result thereof innocent
persons
are
subjected
to
malicious
prosecution and undergo long periods of
imprisonment. Widespread misuse of the
POCSO Act was also noticed in Aman
(supra).

30. This Court in Atul Mishra v.
State of U.P. and 3 others.17 noted the
legislative object of POCSO Act, and also
found abuse of the enactment. Balancing
the need to implement the statute while
taking social realities into account, Rahul
Chaturvedi J. in Atul Mishra (supra) held:

"13. Growing incidences where
teenagers and young adults fall victim of
the offences under the POCSO Act, being
slapped by the penal provisions of POCSO
Act without understanding the far reaching
implication
of
the
severity
of
the
enactment, is an issue that brings much
concern to the conscience of this Court. A
reading of the statement of objects and
reasons of POCSO Act would show that, as
mentioned, to protect the child from the
offences of sexual abuse, sexual assault and
harassment, pornography, pursuant to the
Article-15 of the Constitution of India,
1950 and the Conservation on the Rights of
the children. However, a large array of the
cases filed under the POCSO Act seems to
be those arising on the basis of the
complaints/F.I.Rs. lodged by the families
of adolescents and teenagers who are
involved in romantic relationship with each
other. The scheme of the Act clearly shows
that it did not intend to bring within its
scope or limits, the cases of the nature
where
the
adolescents
or
teenagers
involved in the dense romantic affair.

14. This Court deems it fit and
necessary to take a moment to delve into an
important aspect, the awareness of which is
crucial in understanding and appreciating
with the cases of instant nature. It is crucial
to accept the science and psychology of an
adolescent and young adulthood at this
juncture. This is because social and
biological
phenomenons
are
widely
recognised as determinates of human
development, health and socio-economic
attainment across the life course, but our
understanding of the underlying pathways
and processes remains limited. Therefore, a
"bio-social approach" needs to be adopted
and appreciated i.e. one that conceptualizes
the biological and social requirements of
two teenagers, who on account of mutual
infatuation are attracted and decide for their
future. Their decision could be impulsive,
immature but certainly not sinful or tainted
as branded in the F.I.R. or complaint of the
informant."

31. Medical determination of the
victim's age by the competent medical
authority at the commencement of the
police
investigation
will
ensure
5 All. Anurudh Vs. State of U.P. & Ors.
1937
implementation of the statutory mandate of
Section 164-A of Cr.P.C. read with Section
27 of POCSO Act, comply with the law laid
down by this Court in Aman (supra), and
will help curb the menace of false cases
under the POCSO Act.

VI. Judgement in Pradeep Kumar
Chauhan and another v. State of U.P.
and 3 others: Non applicability to police
investigations into POCSO Act offences:

32. The facts and the legal issues
which arose for consideration in Pradeep
Kumar Chauhan (supra) have to be
noticed first. Pradeep Kumar Chauhan
(supra) was a Habeas Corpus Writ Petition
which was filed by the petitioner No.1
claiming that the petitioner No.2 was his
legally wedded wife. During the pendency
of the habeas corpus petition, a medical
report determining the corpus's age was
drawn up.

33. In those facts and circumstances
while considering the said medical report of
the corpus; this Court in Pradeep Kumar
Chauhan (supra) held as under:

"At this stage, Sri Vinod Kumar
Yadav, learned counsel for the petitioners
submits that the Investigating Officer got
examined the corpus at Pt. D.D.U. Govt.
Hospital,
Varanasi
by
the
concerned
radiologist
and
Chief
Medial
Officer
whereupon in examination, age of the victim
has been determined to be 19 years. This
medical was conducted on 13.11.2019. It is
further pointed out by the learned counsel for
the petitioners that the statement of victim
was recorded under Section 164 Cr.P.C.
before
the
concerned
Chief
Judicial
Magistrate,
Court
No.1
Mirzapur
on
08.11.2019 wherein the victim has admitted
that she and petitioner No.1 Pradeep Kumar
Chauhan were studying in the same school,
therefore, in the light of this statement given
by the victim, the conduct of Investigating
Officer becomes doubtful.

It appears that either Investigating
Officer is not aware of the procedure and the
provisions contained in the Juvenile Justice
(Care and Protection of Children) Act, 2015
or with a view to shield the accused person,
he has directed the victim to undergo medical
examination.

This requires thorough enquiry in
the matter.

The Director General of Police,
U.P. is directed to immediately issue a
circular/order informing all the investigating
Officers through respective Superintendents
of Police, the manner in which investigations
to be carried out. He shall also ensure that all
the Investigating officers are given periodic
training and Ist phase of periodic training be
completed within one year after drawing a
time-table/ roaster for said training to be
imparted in various Police Academies of the
State including training for forensic and
scientific investigation.

The Director General will submit
first report before the Registrar General
before expiry of three months from today as
to the steps taken from rendering training on
the aspect of the investigation to all the
Investigating Officers posted in the State of
Uttar Pradesh.

He shall also cause conduct of an
inquiry to be carried out in relation to be
alleged misconduct of the Investigating
Officer of the present case viz. Sanjeev
Kumar Singh, Narayanpur, Police StationAdalhat, Mirzapur and to take strict
disciplinary action against the Investigating
Officer, who conducted the Investigation."

34. Pradeep Kumar Chauhan
(supra) did not arise out of a criminal
investigation for an offence under the
1938 INDIAN LAW REPORTS ALLAHABAD SERIES
POCSO Act. The provisions of Section
164-A of the Cr.P.C. read with Section 27
of the POCSO Act were not in issue and
never arose for consideration before this
Court in Pradeep Kumar Chauhan
(supra). Further this Court in Pradeep
Kumar Chauhan (supra) did not even
reference or examine Section 164-A of the
Cr.P.C. read with Section 27 of the POCSO
Act.

35. The directions of this Court issued
in Pradeep Kumar Chauhan (supra) do
not prevent the police authorities to get the
age of a victim determined by the
competent medical authority under Section
164-A of the Cr.P.C. read with Section 27
of the POCSO Act. Infact directions in
Pradeep Kumar Chuahan (supra) are not
applicable to investigation of POCSO Act
offences.

36. Non applicability of the directions
in Pradeep Kumar Chauhan (supra) to
POCSO Act offences is supported by
authorities in point. A Full Bench of this
Court in Chandrapal Singh v. State of
U.P. and another18 was squarely faced
with the issue of determining the binding
precedent in a judgement rendered by a
Constitutional Court.

37. The Full Bench of this Court in
Chandrapal Singh (supra) examined
various judgements in point and held thus:

"158. The law is settled to the
point that it is axiomatic that only the ratio
decidendi in a judgement constitutes the
binding precedent.

159. The Civil Appeal before
the Supreme Court in State of Orissa v.
Sudhansu Sekhar Misra and others19 was
an outcome of the conflict between the
High Court and the Government of
Orissa. The High Court effected transfers
of judicial officers in light of its reading
of the judgment of the Supreme Court in
State of Assam v. Ranga Muhammad and
others20. The High Court relied on the
observations
in
Ranga
Muhammad
(supra) that after a judicial officer is
posted to the cadre it is for the High Court
to effect his transfers and accordingly
passed
orders
transferring
judicial
officers to posts in the State Government.

160. The Supreme Court in
Sudhansu Sekhar Misra (supra) clarified
the ratio in Ranga Muhammad (supra) as
follows:

"13. ...Obviously relying on the
observation of this Court that after a
judicial officer is posted to the cadre, it is
for the High Court to effect his transfers,
the court below has come to the
conclusion that as the posts of the law
secretary, deputy law secretary and
superintendent and legal remembrancer
are included in the cadre, the High Court
has the power to fill those posts by
transfer of judicial officers. The cadre this
Court
was
considering
in Ranga
Mahammad case [(1967) 1 SCR 454] ,
namely,
Assam
Superior
Judicial
Services Cadre consisted of the Registrar
of the Assam High Court and three
district judges in the first grade and some
additional district judges in Grade II. In
that cadre, no officer holding any post
under the government was included.
Hence the reference by this Court to the
cadre is a reference to a cadre consisting
essentially of officers under the direct
control of the High Court. It was in that
context this Court spoke of the cadre. The
question of law considered in that
decision was as regards the scope of the
expression "control over District Court"
in Article 235. The reference to the cadre
was merely incidental."
5 All. Anurudh Vs. State of U.P. & Ors.
1939

161. The principle that only the
ratio decidendi of a judgement that is
treated as a binding precedent was reflected
in Sudhansu Sekhar (supra) wherein after
relying on British authorities it was held:

" 13. ...A decision is only an
authority for what it actually decides. What
is of the essence in a decision is its ratio and
not every observation found therein nor
what logically follows from the various
observations made in it. On this topic this is
what Earl of Halsbury L.C. said in Quinn v.
Leathem [[1901] AC 495]:

"Now before discussing the case
of Allen v. Flood, [1898] AC 1 and what
was decided therein, there are two
observations of a general character which I
wish to make, and one is to repeat what I
have very often said before, that every
judgment must be read as applicable to the
particular facts proved, or assumed to be
proved, since the generality of the
expressions which may be found there are
not intended to be expositions of the whole
law, but governed and qualified by the
particular facts of the case in which such
expressions are to be found. The other is
that a case is only an authority for what it
actually decides. I entirely deny that it can
be quoted for a proposition that may seem
to follow logically from it. Such a mode of
reasoning
assumes
that
the
law
is
necessarily a logical code, whereas every
lawyer must acknowledge that the law is
not always logical at all.

It is not a profitable task to extract
a sentence here and there from a judgment
and to build upon it."

162. The said judgment was also
followed by the Supreme Court in H.H.
Maharajadhiraja Madhav Rao Jivaji Rao
Scindia Bahadur of Gwalior, etc. v. Union
of India and another21. Madhav Rao
Scindia Bahadur (supra) also cautioned:

"It is not proper to regard a word,
a clause or a sentence occurring in a
judgment of the Supreme Court, divorced
from its context, as containing a full
exposition of the law on a question when
the question did not even fall to be
answered in that judgment."

164. The scope of law declared
within the meaning of Article 141 of the
Constitution
of
India
arose
for
consideration before the Supreme Court in
Dalbir Singh and others v. State of
Punjab22. The process to isolate the ratio
decidendi from the judgment was set out in
Dalbir Singh (supra) as under:

"22. With greatest respect, the
majority decision in Rajendra Prasad
case does not lay down any legal principle
of general applicability. A decision on a
question of sentence depending upon the
facts and circumstances of a particular
case, can never be regarded as a binding
precedent, much less "law declared"
within the meaning of Article 141 of the
Constitution so as to bind all courts
within the territory of India. According
to the well-settled theory of precedents
every decision contains three basic
ingredients:

"(i) findings of material facts,
direct and inferential. An inferential
finding of facts is the inference which the
Judge
draws
from
the
direct
or
perceptible facts;

(ii) statements of the principles
of law applicable to the legal problems
disclosed by the facts; and

(iii) judgment based on the
combined effect of (i) and (ii) above."

For the purposes of the parties
themselves and their privies, ingredient (iii)
is the material element in the decision for it
determines finally their rights and liabilities
in relation to the subject-matter of the
action. It is the judgment that estops the
1940 INDIAN LAW REPORTS ALLAHABAD SERIES
parties
from
reopening
the
dispute.
However, for the purpose of the doctrine
of precedents, ingredient (ii) is the vital
element in the decision. This indeed is the
ratio decidendi. [ R.J. Walker & M.G.
Walker : The English Legal System.
Butterworths, 1972, 3rd Edn., pp. 12324] It is not everything said by a judge
when giving judgment that constitutes a
precedent. The only thing in a judge's
decision binding a party is the principle
upon which the case is decided and for
this reason it is important to analyse a
decision and isolate from it the ratio
decidendi.
In
the
leading
case
of Qualcast
(Wolverhampton)
Ltd.
v.