High Court · 2025

Crl.O.P(MD)No.11837 of 2025BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Reserved on: 30.07.2025Pronounced on: 13.08.2025PRESENTTHE HONOURABLE MR.JUSTICE P.VADAMALAICrl.O.P(MD)No.11837 of 20251.Sankar2.Vignesh...Petitioners/Accused Nos.1 & 2 Vs.State of Tamil Nadu throughThe Inspector of Police,All Women Police Station,Thirupparankundram P.S,Madurai.(Crime No.25 of 2023)... Respondent/ComplainantPRAYER: Criminal Original Petition filed under Section 483 of BNSS, to enlarge theaccused on bail in Spl.S.C.No.20 of 2024 on the file of the Special Court for Casesunder POCSO Act, Madurai. For Petitioners : Mr.Ananda Padmanabhan Senior Counsel for M/s.APN Law AssociatesFor Respondent : Mr.B.Thanga Aravindh Government Advocate (Crl.side)O R D E RThe petitioners seek bail in connection with the case in Spl.S.C.No.20 of 2024 onthe file of the Special Court for Cases under POCSO Act, Madurai relating to CrimeNo.25 of 2023 of respondent police.2. The case of the prosecution is that the defacto complainant is doing facial andmehanthi work. On the date of occurrence, i.e., on 24.12.2023, the first petitioner1/7 https://www.mhc.tn.gov.in/judis Crl.O.P(MD)No.11837 of 2025called the defacto complainant, who is aged about 17 years, over phone and invitedher to his house for doing mehanthi work to his wife for celebrating Christmas.Believing his words, she went to the first petitioner's house, but his wife was notthere. At that time, the petitioners were intoxicated and committed the allegedoffence. Hence, the case.3. The learned counsel for the petitioners submitted that this is the fifthapplication. Earlier bail applications were dismissed by this Court on 17.04.2024,11.06.2024, 03.09.2024 and 18.10.2024, respectively. In the FIR, it is stated that theoccurrence date was 24.12.2023 and the defacto complainant's date of birth was28.01.2006, i.e. 17 years at the time of occurrence. But there is no unimpeachabledocument has been produced on the side of the prosecution to prove her age. Themedical expert also admitted to the fact that when there is no authentic recordpertaining to the age of the victim, the person should be subjected to ossification test.In this case, even the ossification test to determine the age of the victim has not beenperformed. He would further submit that the earlier bail application, dated18.10.2024, was dismissed by this Court on the ground that PW1 was not crossexamined and now he enclosed the deposition of cross examination of PW1 anddeposition of PW20 – Medical Witness in the additional typed set of papers. As percross examination of PW1, the fact that the defacto complainant's age may be above2/7 https://www.mhc.tn.gov.in/judis Crl.O.P(MD)No.11837 of 202518 years. He would further submit that PW20 - Doctor, in his chief examination,stated that there was no external injury or symptoms. Now the cross examination ofthe defacto complainant is over and at the time of occurrence, she was above 18 years,so the POCSO Act would not attract. The petitioners are in judicial custody formore than 1 year and 6 months and hence, he seek bail.4. The learned Government Advocate (Crl.side) appearing for the respondentpolice submitted that three months prior to the occurrence, the first petitioner and hiswife went to the beauty parlour, where the victim girl was working and the firstpetitioner's wife received the phone number from the victim girl. Subsequently, onthe date of occurrence, the first petitioner called the victim girl to come to his homefor doing mehanthi work to his wife. Believing his words, she went to the firstpetitioner's house, and the second petitioner was also there. At that time, thepetitioners were intoxicated and they compelled the victim girl and committedpenetrative sexual assault upon the victim girl. He would further submit that PW1was cross examined and the next hearing date for cross examination of PW2/motherof the victim and PW3/father of the victim stands posted to 05.08.2025. This is thefifth bail application. Earlier bail applications were dismissed by this Court on17.04.2024, 11.06.2024, 03.09.2024 and 18.10.2024, respectively. Hence, he stronglyobjected to grant bail to the petitioners.3/7 https://www.mhc.tn.gov.in/judis Crl.O.P(MD)No.11837 of 20255. Heard and perused available records. It is seen from the records that this isthe fifth application for bail, and the petitioners' earlier applications were dismissed.The petitioners now submitted that the main prosecution witnesses, namely thealleged victim girl/P.W.1 and the doctor/PW.20, were cross examined on thepetitioners' side. It is the main contention of the petitioners that the age of the victimgirl is not 17 years, she is more than 18 years, as per cross examination of PW1 andalso the same is revealed from the evidence of P.W.20 - doctor. The said contentioncould not be decided in this bail petition. The 4th bail petition in Crl.O.P.(MD)No.16430 of 2024 was dismissed by this Court on the ground that the main witnesseswere not cross examined. Now the victim girl as well as the medical officers werecross examined. As per doctor’s evidence, the victim girl stated to her as attemptedrape and though the hymen not intact, she stated that there was no fresh injury. Thepetitioners have submitted that the prosecution side is taking more time forcompletion of the prosecution and the petitioners are in judicial custody for the pastone year and 10 months. The Hon’ble Supreme Court held in Rabi Prakash /v/ Stateof Odisha reported in 2023 Live Law (SC ) 533, that the prolonged incarcerationgenerally militates against the most precious fundamental right guaranteed underArticle 21 of the Constitution. The legal principle “bail is the rule and jail is theexception’ emphasized that pre-trial detention should be the exception, not the norm.4/7 https://www.mhc.tn.gov.in/judis Crl.O.P(MD)No.11837 of 2025Imprisonment before a conviction should be reserved for cases where there are strongreasons to believe the accused might abscond, tamper with evidence or pose a threatto public safety. 6. In this case main witnesses were cross examined by the petitioners' side.Also, the prosecution has not put forth submission that the petitioners might tamperwith the other evidences or might abscond in case of release on bail. The petitionersare in judicial custody for nearly one year and ten months. Main witnesses, the victimand medical officers were fully cross examined. Therefore, considering the abovefacts and circumstances and also considering the incarceration period, this Court isinclined to grant bail to the petitioners with conditions.7. Accordingly, the petitioners are ordered to be released on bail on executing abond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each with twosureties each for a like sum to the satisfaction of the learned Sessions Judge, SpecialCourt for Exclusive Trial of Cases under POCSO Act, Madurai, and on furthercondition that: (a) The sureties shall affix their photographs and Left ThumbImpression in the surety bond and the Sessions Judge, Special Court for ExclusiveTrial of Cases under POCSO Act, Madurai may obtain a copy of their Aadhar card orBank Pass Book to ensure their identity; and (b) The petitioners shall furnish their residential address and5/7 https://www.mhc.tn.gov.in/judis Crl.O.P(MD)No.11837 of 2025contact number to the learned Sessions Judge, Special Court forExclusive Trial of Cases under POCSO Act, Madurai. If thepetitioners change their residential address, they shall report thesame to the learned Sessions Judge, Special Court for Exclusive Trialof Cases under POCSO Act, Madurai;(c) On release, the petitioners shall appear and sign before thelearned Sessions Judge, Special Court for Exclusive Trial of Casesunder POCSO Act, Madurai daily at 10.00 a.m. on all hearing dates.(d) The petitioners shall not abscond and shall cooperate forthe trial; (e) The petitioners shall not tamper the witnesses;(f) On breach of any of the aforesaid conditions, the SessionsJudge, Special Court for Exclusive Trial of Cases under POCSO Act,Madurai is entitled to take appropriate action against the petitionerin accordance with law as if the conditions have been imposed andand if there is any violation of condition, the Investigation Officer iswithin his discretion to approach the Court of the learned JudicialMagistrate, concerned for cancellation of bail as per the ruling of theHon'ble Supreme Court reported in P.K.Shaji/Vs/State of Kerala,6/7 https://www.mhc.tn.gov.in/judis Crl.O.P(MD)No.11837 of 2025(2005) AIR S.C.W.5560 and; (g) if the accused/petitioners thereafter abscond, a fresh FIRcan be registered under Section 269 of BNS, 2023. sd/- 13/08/2025 / TRUE COPY / 13/08/2025 Sub-Assistant Registrar Madurai Bench of Madras High Court, Madurai - 625 023. vsd TO1 THE SESSIONS JUDGE, SPECIAL COURT FOR EXCLUSIVE TRIAL OF CASESUNDER POCSO ACT, MADURAI.2 THE SUPERINTENDENT, CENTRAL PRISON, MADURAI.3 THE INSPECTOR OF POLICE, ALL WOMEN POLICE STATION,THIRUPPARANKUNDRAM POLICE STATION, MADURAI.4 THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRASHIGH COURT, MADURAI. +1 CC to M/s.APN LAW ASSOCIATES, Advocate ( SR-8754[I] dated 13/08/2025 ) ORDER IN CRL OP(MD) No.11837 of 2025 Date :13/08/2025NBF/SAR- /13/08/2025/ 7P/6CMadurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023 7/7