State of Uttarakhand v. Mr. Akshay Pradhan, Learned Counsel for the

The case arises from an FIR lodged on 03.06.2024 by the mother of the minor victim, alleging that the child, aged about six years, had complained of pain in her abdomen and private parts. Upon inquiry, the child allegedly disclosed certain inappropriate acts by her father, the co-accused, Lekhraj. During the investigation, the name of the present applicant, a friend of the co-accused, surfaced in the victim's statement recorded under Section 164 Cr.P.C.

3. Heard the learned counsels of the parties and perused the records. 1

4. Learned counsel for the applicant submits that the applicant is not named in the FIR and that no specific role suggesting sexual assault or criminal intimidation has been attributed to him therein.

5. It is further submitted that the implication of the applicant is merely on account of his proximity to the co-accused, with whom the complainant shares ongoing matrimonial discord. It is urged that the applicant’s involvement has been artificially created as a collateral consequence of the domestic dispute between the complainant and her husband.

6. A specific contention raised by learned counsel is that the statement of the victim under Section 164 Cr.P.C. is not independently credible, as it was recorded in the presence of her mother.

7. It is argued that such presence could have influenced or “tutored” the minor witness, and thereby vitiates the reliability of the testimony. Reference is made to the statement of PW-3, the Revenue Officer, wherein it is admitted that the mother of the victim was present when the Section 164 statement was taken.

8. On this basis, the applicant contends that the minor victim’s statement lacks spontaneous veracity and cannot form the basis for denial of bail.

9. Per contra, learned GA has opposed the bail application on the grounds of the gravity of the offence and the tender age of the victim. It is submitted that the victim’s statement under Section 164 Cr.P.C. explicitly implicates the applicant, and her statements under Section 161 Cr. P.C. corroborate the same.

10. It is further submitted that the presence of the complainant during the recording of the statement is not impermissible under law, particularly under the protective scheme envisaged under the POCSO Act. 2

11. Having considered the rival submissions and perused the material on record, this Court would first address the issue of the presence of the mother during the recording of the victim’s statement.

12. The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) lays down specific procedural safeguards and child- sensitive mechanisms to ensure that the investigative process does not retraumatise the victim.

13. Section 24(1) of the POCSO Act provides that the statement of the child shall be recorded at a place of the child’s choice or residence, in a child-friendly manner, and as far as possible by a woman police officer. Section 24(2) further directs that the officer shall not be in uniform and shall ensure that the child does not come into contact with the accused.

14. Of particular significance in the present case is Section 26(1) of the POCSO Act, which governs the recording of the child’s statement by the Magistrate under Section 164 Cr.P.C. It states:

15. In accordance with Section 26(1) of the POCSO Act, 2012, the police officer, the Magistrate, or the Court, as the case may be, shall record the statement of the child as spoken by the child, in the presence of the parents or any other person in whom the child has trust or confidence.

16. Additionally, Rule 4(7) of the POCSO Rules, 2020, introduces the concept of a ‘support person’ — a designated individual who may accompany the child to the police station, hospital, or court, and remain present during the recording of the statement under Section 164 CrPC.

17. The presence of such a trusted or designated support person is statutorily envisaged to ensure the child’s psychological safety and to foster a child-sensitive atmosphere during the investigation process. 3

18. In the instant case, the victim was only six years old at the time of the incident and recording of the statement. Given the child’s age and the sensitivity of the alleged offence, the presence of her mother during the process cannot be viewed as irregular or prejudicial.

19. Whether the statement was, in fact, influenced or “tutored” — as alleged by the defence — is a matter of factual scrutiny and credibility, which falls squarely within the domain of the trial court’s appreciation of evidence. At the stage of considering bail, this Court is not required to weigh such assertions unless there are patent inconsistencies or prima facie indications of coercion or manipulation, which are absent here.

20. It is further noted that the statement under Section 164 Cr.P.C. was recorded under judicial supervision, and no procedural infirmity appears on record.

21. The applicant is not related to the complainant or victim, and his alleged presence during certain material events is yet to be tested during trial. The offences alleged are serious, punishable with imprisonment extending to life, and pertain to a victim of a highly tender age. The investigation is complete, the charge sheet has been filed, and the trial is underway. Granting bail at this juncture, in the present matter, may jeopardise the integrity of the trial.

22. The Hon’ble Supreme Court has repeatedly emphasized that while liberty is a fundamental right, it must be balanced against the nature and gravity of the offence, particularly where the allegations pertain to sexual assault on a minor. In State of Madhya Pradesh v. Madan Lal, (2015) 7 SCC 681, the Court held that “in cases of heinous offences under the POCSO Act, the paramount consideration is the safety and dignity of the child victim, and bail should not be granted mechanically.” Similarly, in X v. State of Maharashtra, (2019) 7 SCC 1, it was underscored that the testimony of the child victim, if found 4 prima facie credible, is sufficient to deny bail at the pre-trial stage. Further, in Kewal Krishan v. Suraj Bhan, (1980) 1 SCC 290, the Apex Court cautioned that “undue sympathy in granting bail in serious offences may do more harm to the justice system than good.” These decisions collectively reinforce that in offences of such grave nature, especially when involving vulnerable victims, the presumption must lean in favour of protecting the societal interest and the integrity of trial proceedings. ORDER In view of the foregoing discussion, this Court does not find the present matter to be a fit case for the grant of bail at this stage. Accordingly, the bail application stands rejected. (Ashish Naithani, J) Dated:01.04.2025 NR/ 5