POCSO cases: Allahabad High Court says dismissal of bail pleas reflects bias of trial courts

The Allahabad High Court recently observed that trial courts were biased towards rejection of bail applications in cases under the Protection of Children from Sexual Offences (POCSO) Act [Anurudh v. State of UP & 3 Others]..Justice Ajay Bhanot made the comment after studying at least 40 bail orders of trial courts in which bail was denied to the accused despite medical reports declaring the victim to be 18 years old or above and the victim admitting to the consensual nature of the physical relations.“The said orders show that regardless of the facts of a case there was a bias in the institution (trial courts) towards rejection of bail applications. Hundred percent dismissal of the said bail applications is reflective of “bias” and not divergent judicial opinions which come in the category of “noise”,” the Court said..Such failings of the trial courts need to be addressed by stakeholders including the judges themselves and the Judicial Training & Research Institute (JTRI), Lucknow, Uttar Pradesh, the judge said.“The culture or if one may say the mindset of the learned trial judges (collectively speaking) that dismissal of bails in POCSO Act offences irrespective of the facts and circumstances of the case is the only way to show one’s integrity and a fail safe way of discharging judicial functions has to change.".There is an urgent need for the JTRI and all district judges to study the “systemic faults” in depth, and create appropriate training programmes for POCSO judges, it added.However, the Court also clarified that its observations shall not operate adversely against the judicial officers who have passed the orders in question. The issue has to be seen less as an individual infirmity but more as an institutional inadequacy, it explained..Justice Bhanot also observed that the High Court should not be a source of fear for the trial judiciary, but a benign guardian and pillar of strength. The Court added that the Constitution has put a solemn obligation on the High Court to nurture the autonomy of trial judges to enable them to act independently and build their capacity to judge fairly.“When challenge is laid to a judgment of a trial court before the High Court, the correctness of the impugned judgement is examined by this Court. To correct an error in a judgment one need not condemn the judge. For in the latter case it is often not clear whether the judgment is in appeal or the judge is on trial,” it said..The Court made the observations while granting bail to an accused in a POCSO case. In the order, the Court delved into the aspect related to the victim’s age in such cases. It remarked that large variations in documents pertaining to the victim’s age are being noticed in “overwhelming number of cases” 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 POCSO Act thus becomes critical even in bail matters. In fact in POCSO Act offences the victim’s age is also a jurisdictional issue,” the Court said..The Court in an earlier ruling had directed the police to get medical reports on the victims' age at the start of the investigation.In the present order, it opined that failure to consider or accord due weight to such a medical report, without good cause, contravenes the law. It also said that problems persist on account of the recurrent failure of the police authorities to get the victim’s age determined by the competent medical authority..Thus, it directed the investigation officers to strictly comply with the court’s directions and ensure that the medical report determining the age of the victim is drawn up by the competent medical authority at the commencement of the investigations.“The court has to determine the credibility of the respective age related documents while deciding the bail application in the facts of the case. In appropriate facts and circumstances as in the instant case, the age determined by the competent medical authority under Section 164-A of Cr.P.C. read with Section 27 of the POCSO Act can prevail over other age related documents (including school records),” it observed..Advocate Shams uz Zaman and Fakhr uz Zaman represented the accused.Advocate Paritosh Kumar Malviya represented the State..[Read Judgment]