High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25304 of 2021 Applicant :- Dhannu Varma @ Dhananjay Varma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kamlesh Singh,Suresh Chandra Pandey Counsel for Opposite Party :- G.A.,Brijesh Kumar Mishra Hon'ble Saurabh Shyam Shamshery,J. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No. 272 of 2020, under Sections 363, 376 IPC and Section 3/4 POCSO Act, Police Station - Lar, District - Deoria after rejection of his Bail Application, vide order dated 9.2.2021 passed by Special Judge (POCSO) Act, Court No.1, Deoria.
Legal Reasoning
(A) Law on bail is well settled that 'Bail is rule and Jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused. (B) It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. (C) It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. Heard Shri Saurabh Pandey, learned counsel for the applicant, Shri Brijesh Kumar Mishra, learned counsel for the informant and Shri U.P. Singh, learned A.G.A. and perused the record. In the present case, the victim is a minor girl, she in her statement recorded under Section 161 Cr.P.C. has stated that she was enticed by the applicant, who took her to his house where he mode physical relationship against her consent, however, the victim in her statement recorded under Section 164 Cr.P.C. has stated that she with her own will stayed with the applicant and made consensual relationship. However, under the provisions of POCSO Act, the consent of the minor (in the present case, victim is aged about 14 years), is immaterial. In the recent judgment passed by the Apex Court X (Minor) (Supra), in a similar circumstances, it is held that :- "6. The High Court was manifestly in error in allowing the application for bail. The reason that from the statement under Section 164 and the averments in the FIR, it appears that "there was a love affair" between the appellant and the second respondent and that the case was instituted on the refusal of the second respondent to marry the appellant, is specious. Once, prima facie, it appears from the material before the Court that the appellant was barely thirteen years of age on the date when the alleged offence took place, both the grounds, namely that "there was a love affair" between the appellant and the second respondent as well as the alleged refusal to marry, are circumstances which will have no bearing on the grant of bail. Having regard to the age of the prosecutrix and the nature and gravity of the crime, no case for the grant of bail was established. The order of the High Court granting bail has to be interfered with since the circumstances which prevailed with the High Court are extraneous in view of the age of the prosecutrix, having regard to the provisions of Section 376 of IPC and Section 6 of POCSO." In view of the position of law as well as considering the facts and circumstances of present case that the victim who is a minor girl aged about 14 years, therefore, her consent, if any, is immaterial and also take note of the judgment X (Minor) (Supra) in the present case, no case of bail is made out. In view of above, the present application is rejected. Order Date :- 25.2.2022 Rishabh [Saurabh Shyam Shamshery, J.] Digitally signed by RISHABH KUMAR Date: 2022.03.04 17:18:15 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Learned counsel for the applicant urged that in the present case, victim is aged about 16 years old as per medical report. It has been specifically stated in her statement recorded under Section 164 Cr.P.C. that she was in love with the applicant and she on her own will stayed with him and made physical relationship. No force was used and she also stated that the allegation of rape as mentioned in her statement recorded under Section 161 Cr.P.C. was stated under the threat and brother of her mother and wife of applicant. He further submits that relation between the applicant and her wife are not cordial. It is next submitted that accused is considered to be an innocent person till he convicted after the trial. In the present case, the investigation is not fairly conducted and only in order to involve the accused for the alleged offence a tutored statement of the victim was recorded. However, he fairly submits that according to educational document, the age of victim is 29.1.2016 and accordingly, on the date of occurrence, she is minor girl aged about 14 years. He lastly submits that it is a case of blemished investigation and in view of the reformative theory, applicant, a young boy, languishing in jail since 6.11.2020 is entitled for bail. Applicant undertakes that if he is enlarged on bail, he will never misuse his liberty, will not commit any offence during bail and will co-operate in the trial. Learned A.G.A. has opposed the submission and submits that according to the educational documents as well as the report opined in the medical examination, victim is a minor girl. Applicant, alleged to be a teacher, was giving tution to the victim. In the case of minor even the consent is immaterial. In this regard, he relied upon a recent judgment passed by the Supreme Court in the case of X (Minor) vs. The State of Jharkhand and another (Criminal Appeal No.263 of 2022), decided on 21.02.2022.