# Dharmendra v. State of U.P. & Ors. 84 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 9 ILRA 83
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-27
- **Case number:** Criminal Misc. Bail Application No. 34904 of 2024
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-v-state-of-u-p-ors-84-indian-law-reports-allahabad-series-52519
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 376, 506 & 120B - Protection of
Children from Sexual Offences Act, 2012 -
Section 3⁄4 - Code of Criminal Procedure,
1973 - Section 161 - Juvenile Justice (Care
and Protection of children) Act, 2015 -
Section
94
-
Quashing
of
FIR
-
Determination of age of victim - Victim was
wrongly shown as minor of 15 years in F.I.R.
only to falsely implicate applicant under
stringent provisions of POCSO Act - Material
contradictions in her age as recorded in
prosecution documents - No lawful basis for
age related entry of victim - Medical report
records age of victim as 13 years - She was
in fact a major. (Para 2, 9)

Held, medical reports determining age of
victim which are bereft of reasoning or
made in breach of existing scientific
parameters and medical protocols are
inconsistent with Section 27 of POCSO Act
r/w Section 164A (2)(3) of Cr.P.C - In the
instant case, the age column has been
simply filled, and reasons for conclusion
regarding age was absent - Thus, report
was invalid - Entitled to bail, directions
accordingly. (Para 17)

Bail application allowed. (E-13)

List of Cases cited:

## Text

9 All. Dharmendra Vs. State of U.P. & Ors.
83
consideration will have to be on case-tocase basis on facts involved therein and
securing the presence of the accused to
stand trial. Paragraph-23 of the said
judgement reads thus:

"23. Thus, from cumulative perusal
of the judgments cited on either side including
the one rendered by the Constitution Bench of
this Court, it could be deduced that the basic
jurisprudence relating to bail remains the same
inasmuch as the grant of bail is the rule and
refusal is the exception so as to ensure that the
accused has the opportunity of securing fair
trial. However, while considering the same the
gravity of the offence is an aspect which is
required to be kept in view by the Court. The
gravity for the said purpose will have to be
gathered from the facts and circumstances
arising in each case. Keeping in view the
consequences that would befall on the society
in cases of financial irregularities, it has been
held that even economic offences would fall
under the category of "grave offence" and in
such circumstance while considering the
application for bail in such matters, the Court
will have to deal with the same, being sensitive
to the nature of allegation made against the
accused. One of the circumstances to consider
the gravity of the offence is also the term of
sentence that is prescribed for the offence the
accused is alleged to have committed. Such
consideration with regard to the gravity of
offence is a factor which is in addition to the
triple test or the tripod test that would be
normally applied. In that regard what is also
to be kept in perspective is that even if the
allegation is one of grave economic offence,
it is not a rule that bail should be denied in
every case since there is no such bar created
in the relevant enactment passed by the
legislature nor does the bail jurisprudence
provide so. Therefore, the underlining
conclusion is that irrespective of the nature
and gravity of charge, the precedent of
another case alone will not be the basis for
either grant or refusal of bail though it may
have a bearing on principle. But ultimately
the consideration will have to be on case-tocase basis on the facts involved therein and
securing the presence of the accused to stand
trial."

63. Recently the Apex Court in the case
of Satendra Kumar Antil v. Central Bureau
of Investigation and another29, has outlined
the considerations by the Court in the matter of
grant or refusal of bail.

64. In the matter of other accused persons,
this Court has rejected the bail applications vide
judgement
dated
31.08.2024
passed
in
Criminal Misc. Bail Application No. 53010
of 202330.

65.

Having
gone
through
the
submissions of learned counsel for the parties,
nature of accusation of offence, role of the
applicants as well as reasons given in
judgement passed in Bail Application No.
53010 of 2023, I do not find it a fit case for
granting bail.

66. The bail applications preferred by the
applicants - Kanika Dhingra and Mayank
Dhingra are rejected.
----------
(2024) 9 ILRA 83
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2024

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc. Bail Application No. 34904 of
2024

Dharmendra ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties
84 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Shashi Kumar Mishra

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 376, 506 & 120B - Protection of
Children from Sexual Offences Act, 2012 -
Section 3⁄4 - Code of Criminal Procedure,
1973 - Section 161 - Juvenile Justice (Care
and Protection of children) Act, 2015 -
Section
94
-
Quashing
of
FIR
-
Determination of age of victim - Victim was
wrongly shown as minor of 15 years in F.I.R.
only to falsely implicate applicant under
stringent provisions of POCSO Act - Material
contradictions in her age as recorded in
prosecution documents - No lawful basis for
age related entry of victim - Medical report
records age of victim as 13 years - She was
in fact a major. (Para 2, 9)

Held, medical reports determining age of
victim which are bereft of reasoning or
made in breach of existing scientific
parameters and medical protocols are
inconsistent with Section 27 of POCSO Act
r/w Section 164A (2)(3) of Cr.P.C - In the
instant case, the age column has been
simply filled, and reasons for conclusion
regarding age was absent - Thus, report
was invalid - Entitled to bail, directions
accordingly. (Para 17)

Bail application allowed. (E-13)

List of Cases cited:
1. Junaid Vs St. of U.P. & anr., 2021 (6) ADJ 511

2. Monish Vs St. of U.P., 2024 (6) ADJ 361

3. Arvind Singh Vs St. of U.P. Thru. Prin. Secy.
Home
Department,
(Application
U/S
482
No.2613 of 2023)

4. Aman @ Vansh Vs St. of U.P, 2024 (8) ADJ
523

5. Anurudh Vs St. of U.P., 2024 (8) ADJ 469

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

1. Matter is taken up in the revised
call.

2. Shri Paritosh Kumar Malviya,
learned AGA-I for the State contends that
the police authorities in compliance of the
directions issued by this Court in Junaid
Vs State of U.P. and another1 and with a
view to implement the provisions of
POCSO Act, 2012 read with POCSO
Rules,
2020,
have
served
the
bail
application upon the victim/legal guardian
as well as upon the CWC.

3. By means of this bail application,
the applicant has prayed to be enlarged on
bail in Session Trial No.103 of 2024 arising
out of Case Crime No.492 of 2023 at Police
Station-Kotwali Dehat, District-Etah under
Sections 376, 506, 120B I.P.C. and Section
3/4 of the POCSO Act, 2012. The applicant
is in jail since 17.12.2023.

4. The bail application of the
applicant was rejected by the learned trial
court on 23.08.2024.

5. The following arguments made by
Shri Shashi Kumar Mishra, learned counsel
on behalf of the applicant, which could not
be satisfactorily refuted by Shri Paritosh
Kumar Malviya, learned AGA-I from the
record, entitle the applicant for grant of
bail:

I. The victim was wrongly shown
as a minor of 15 years in the F.I.R. only to
falsely implicate the applicant under the
stringent provisions of the POCSO Act and
cause her imprisonment.

II. The age of the victim set out in
the prosecution case is refuted in light of
the judgement of this Court in Monish vs
State of U.P. 2 and on the following
grounds:
9 All. Dharmendra Vs. State of U.P. & Ors.
85

(i)
There
are
material
contradictions in the age of the victim as
recorded in various prosecution documents.

(ii) The age of the victim was
incorrectly got registered in the school
records by the victim's parents to give her
an advantage in life. There is no lawful
basis for the age related entry of the victim
in the school records. The school records
disclosing her age as 15 years are
unreliable.

(iii) The victim in her statement
under Section 161 Cr.P.C. has stated that
she is 15 years of age.

(iv) The medical report records
the age of the victim as 13 years. The
medical report has been drawn up in a
mechanical manner and is bereft of all
reasons. The scientific criteria and medical
parameters on the basis of which the said
age has been determined are not disclosed
in the medical report. The said medical
report is in the teeth of Section 27 of the
POCSO Act read with Section 164A (2)(3)
of the Cr.P.C.

(v) No medical examination in
consonance with Section 27 of the POCSO
Act read with Section 164A (2)(3) of the
Cr.P.C. to determine the correct age of the
victim as per the latest scientific criteria
and medical protocol by competent doctors
was got done and no such medical report
was drawn up by the prosecution as it
would establish the majority of the victim
and falsify the prosecution case. The victim
is in fact a major.

III. Delay in lodgement of the
F.I.R. in the facts of this case is fatal to the
prosecution case.

IV. The victim was intimate with
the applicant. The couple had eloped together
and got married.

V. Subsequently the victim and her
husband became estranged. The victim
returned her home after five months.

VI.
False
and
aggravated
allegations were made by the victim against
the applicant only to deflect attention from
her conduct.

VII. The victim was present at
various public places but never raised an
alarm nor did she resist the applicant. The
conduct of the victim shows that she was a
consenting party.

VIII.
Medical
evidence
to
corroborate commission of rape by the
applicant with the victim has not been
produced by the prosecution.

IX. The victim has not identified
the applicant as the principal offender who
committed rape with her.

X. The applicant does not have any
criminal history apart from this case.

XI. The applicant is not a flight
risk. The applicant being a law abiding
citizen has always cooperated with the
investigation and undertakes to join the trial
proceedings. There is no possibility of the
applicant influencing witnesses, tampering
with the evidence or reoffending.

6. In the light of the preceding
discussion
and
without
making
any
observations on the merits of the case, the
bail application is allowed.

7. Let the applicant-Dharmendra be
released on bail in the aforesaid case crime
number, on furnishing a personal bond and
two sureties each in the like amount to the
satisfaction of the court below. The following
conditions be imposed in the interest of
justice:-

(i) The applicant will not tamper
with the evidence or influence any witness
during the trial.

(ii) The applicant will appear
before the trial court on the date fixed,
unless personal presence is exempted.
86 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The learned trial court is directed to
fix the sureties after due application of
mind in light of the judgement rendered by
this Court in Arvind Singh v. State of U.P.
Thru. Prin. Secy. Home Department.3

The learned trial court shall
ensure that the right of bail of the applicant
granted by this Court is not frustrated by
arbitrary demands of sureties or onerous
conditions which are unrelated to the
socioeconomic status of the applicant.

9. The issue relating to determination
of age of a victim in a bail under a POCSO
Act offence has arisen in the instant case.
The said issue will now be addressed. It is
noteworthy
that
the
same
issue
is
constantly arising in bail applications under
the POCSO Act offences.

10. The age of the victim in the
POCSO Act offences has to be determined
in light of the statutory provisions holding
the field. Needless to add, only a prima
facie determination of the age of a victim is
made in a bail application of an accused
under the POCSO Act.

11. It has been repeatedly noticed by
this Court that the age of a victim is disputed
by the accused in an overwhelming majority
of cases. On many occasions there are no age
related documents pertaining to the victim
which are available with the prosecution. The
age related documents are disputed with
credibility by the accused persons in the other
set of cases. At times there are material
contradictions in the age of the victim in the
prosecution documents. This has led to a
widespread misuse of the POCSO Act.

12. The provisions which govern and
regulate determination of age of victims of
POCSO Act offences are as follows:

A. Section 94 of Juvenile Justice
(Care and Protection of children) Act,
2015;

B. Section 27 of POCSO Act read
with Section 164A(2)(3) of Cr.P.C.

13. The said statutory provisions have
to be construed as a complete scheme. No
part thereof can be made redundant by non
consideration of the documents mentioned
therein or failure to comply with the
mandate of said provisions. The manner of
an application of the said provisions in bail
jurisdiction however has been the subject
matter of various decisions of this Court.

14. This Court was faced with the
issue of age determination of victims under
the POCSO Act for the purposes of
deciding the bail applications in Monish
(supra).
In
Monish
(supra)
while
examining the manner of applicability of
Section 94 of Juvenile Justice (Care and
Protection of Children) Act, 2015, it was
held:

"93. In wake of the preceding
narrative, the manner of consideration of
age of a victim in a bail application under
the POCSO Act shall be guided as follows:

I.
The
procedure
for
determination of a victim's age provided in
Section 94 of the JJ Act, 2015 read with JJ
Rules, 2016 shall not apply to bail
applications, though the documents therein
are liable to be considered. Age of victim
as per procedure prescribed in Section 94
of the JJ 46 Act, 2015 is determined
conclusively only in the trial.

II. The line of enquiry and
relevant factors to assess the age of the
victim in a bail application under the
POCSO Act offences are these. The
consideration of the age related documents
mentioned in Section 94 of the JJ Act, 2015
9 All. Dharmendra Vs. State of U.P. & Ors.
87
i.e.
school
certificate
(including
matriculation), date of birth certificate
issued by a local body, and medical report
for age determination as produced by the
prosecution is a good start point in the
process.

III. The accused has a right to
assail the veracity of the age of the victim
as stated in the prosecution case.

IV. The court while deciding the
said bail application is obligated to
independently:

A. Examine the challenge laid to
the victim's age by the accused applicant.

B. Evaluate credible doubts about
the age of the victim.

V. The assessment of age in a bail
order is of a tentative nature, and is based
on probative value of documents which are
yet to be proved or statements of witnesses
who are still to be examined in court. Such
determination by a court is not conclusive
and is made only for the limited purpose
for deciding the bail application.

VI. Same parameters shall apply
to the bail applications filed at a different
stages of trial. However, with each stage of
the trial, the threshold of the satisfaction of
the court may be raised in the facts and
circumstances of the case. Heightened
threshold of satisfaction means the duty of
the court to give full weight to prosecution
evidence, and due regard to the defence
case while considering grant of bail.

VII. It is not advisable to lay
down an inflexible or a straitjacket formula
for grant of bail which will fit all cases.
Practices and precedents in point are a
reliable
guide
for
the
Court
while
exercising its judicial discretion in bail
proceedings and a good defence against
arbitrary decisions."

15. Apart from Section 94 of Juvenile
Justice (Care and Protection of Children)
Act, 2015, there are other provsions also
which deal with the determination of age of
a victim in a POCSO Act offence. The said
provisions are Section 27 of POCSO Act
read with Section 164A (2)(3) of Cr.P.C. A
faultline in police investigations which has
repeatedly come to fore is the failure of the
police and the medical authorities to
comply with the provisions of Section 27 of
POCSO Act read with Section 164A (2)(3)
of Cr.P.C. It will be apposite to reproduce
the said provisions to facilitate the
discussion:

"Section 27 of the 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
of 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.

Section 164A of CrPC- Medical
examination of the victim of rape.-

(2)
The
registered
medical
practitioner, to whom such woman is sent,
shall, without delay, examine her person
88 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

16. The legislative mandate of Section
27 of the POCSO Act read with Section
164A (2)(3) of the Cr.P.C. is explicit and
mandatory. The law enforcement authorities
as well as competent medical authorities are
enjoined to draw up the medical report
pertaining to the age of the victim. (This is
apart from other medical parameters). The
same is of course subject to the consent of the
victim. The age of the victim is a
jurisdictional issue in the POCSO related
offences. Thus, the determination of age
under Section 27 of the POCSO Act read
with Section 164A (2)(3) of the Cr.P.C.
assumes
critical
importance
and
has
jurisdictional significance. The said medical
reports traceable to Section 27 of POCSO
Act read with Section 164A (2)(3) of
Cr.P.C. determining the age have to record
the scientific criteria and the medical
protocols on which the opinion regarding the
age is based. The said medical reports are
examined by the courts on the footing of the
reasoning and the scientific tests/medical
protocols adopted to make the finding on
age.

17. The medical reports determining
the age of the victim which are bereft of
reasoning or made in breach of the existing
scientific parameters and medical protocols
are inconsistent with Section 27 of the
POCSO Act read with Section 164A (2)(3)
of the Cr.P.C. In the instant case the age
column has been simply filled, and the
reasons for the conclusion regarding age is
absent. The report is invalid.

18. Reasons and description of the
medical parameters or scientific criteria
adopted to determine the age of the victim
are the mandatory prerequisites of a valid
medical report. The Court is noticing that
in a number of cases the medical report
mechanically records the age of the victim.
The medical reports which do not give
reasons in support of conclusions with
respect to the victim's age are vitiated,
being in contravention of Section 27 of the
POCSO Act read with Section 164A (2)(3)
of the Cr.P.C.

19. This Court handed down the
directions to the police authorities in Aman
@ Vansh vs State of U.P.4 to ensure strict
compliance with Section 27 of POCSO Act
read with Section 164A (2)(3) of Cr.P.C.
The competent medical authorities of the
State too are liable to implement the
mandate of Section 27 of POCSO Act read
with Section 164A (2)(3) of Cr.P.C. by
giving reasoned medical reports for age
determination of victims.

20.

The
statutory
scheme
of
determination of age of the victims in
POCSO Act offences is a composite one
and involves an interplay of Section 94 of
Juvenile Justice (Care and Protection of
Children) Act, 2015 and also Section 27 of
POCSO Act read with Section 164A(2)(3)
of Cr.P.C.
9 All. Rajiv Jindal Vs. State of U.P.
89

21. As seen earlier the scope of
Section 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 has been
determined by various holdings of the
Supreme Court and the High Courts. In
particular, the nuanced applicability of
Section 94 of Juvenile Justice (Care and
Protection of Children) Act, 2015 in
relation to the offences under the POCSO
Act has been considered by this Court in
Monish (supra) for the purposes of grant
of bail of an accused.

22. The age of the victim in POCSO
Act cases has to be determined in light of and
upon holistic examination of the above said
provisions, namely, Section 94 of Juvenile
Justice (Care and Protection of children) Act,
2015 and Section 27 of POCSO Act read
with Section 164A(2)(3) of Cr.P.C. The
criteria and the documents referenced in all
the aforesaid provisions are liable to be
considered to determine the age of the victim
while deciding the bail applications under the
POCSO Act. The said statutory provisions
mandate that the consideration of the age of
the victim of a POCSO Act offence has to
made in a manner which implements the
above said provisions in an integrated manner
and neglects no provision.

23. The documents mentioned in Section
94 of Juvenile Justice (Care and Protection of
children) Act, 2015 cannot be neglected from
consideration. Similarly, the provisions of
Section 27 of the POCSO Act read with
Section 164A(2)(3) of the Cr.P.C. cannot be
rendered otiose by non consideration of the
medical report determining the age of the
victim, or on account of failure to submit a
reasoned medical report determination of age
of the victims.

24. The Principal Secretary, Medical
Health and Family Welfare, Uttar Pradesh
and Director General, Medical and Health,
Uttar Pradesh, shall ensure that the medical
specialists who determine the age of the
victims/medical reports under the POCSO
Act are properly trained and the said
medical reports are drawn up after giving
reasons for the conclusions consistent with
the mandate of Section 27 of the POCSO
Act read with Section 164A (2)(3) of the
Cr.P.C.

25. After composite consideration of
the law in Monish (supra), Aman (supra)
and the provisions of Section 27 of the
POCSO Act read with Section 164A(2)(3)
of the Cr.P.C., this Court in Anurudh5
issued
appropriate
directions.
The
directions
in
Anurudh
(supra)
are
reiterated.

26. The Director General of Police,
Government of U.P. Lucknow, Principal
Secretary, Medical Health and Family
Welfare, Uttar Pradesh and Director
General, Medical and Health, Uttar Pradesh
are directed to ensure compliance of the
judgements rendered in Monish (supra),
Aman (supra), Anurudh (supra) and the
instant case.
----------
(2024) 9 ILRA 89
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.08.2024

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Misc. Bail Application No. 53010 of
2023
With other connected cases

Rajiv Jindal ...Applicant
Versus
State of U.P. ...Opposite Party