High Court
Case Details
Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54241 of 2021 Applicant :- Lavkush Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Jitendra Singh Counsel for Opposite Party :- G.A.,Surendra Mohan Mishra Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Jitendra Singh, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Lavkush, seeking his enlargement on bail in Case crime No. 77 of 2021, under sections 363, 366 IPC and Section 5/6 POCSO Act, Police Station- Chilhiya, District Siddharth Nagar during the pendency of trial. Perused the record. Record shows that in respect of an incident which is alleged to have occurred on 10.8.2021, a belated F.I.R. dated 20.8.2021 was lodged by first informant Shri Chandra Kishor and was registered as Case crime No. 77 of 2021, under sections 363, 366 IPC and Section 5/6 POCSO Act, Police Station- Chilhiya, District Siddharth Nagar. In the aforesaid F.I.R., applicant Lavkush has been nominated as solitary named accused. The gravamen of the allegations made in F.I.R. is that named accused enticed away the minor daughter of first informant on 10.8.2021. After registration of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned Case crime number in terms of Chapter XII Cr.P.C. Prosecutrix was recovered on 21.8.2021. Thereafter, the statement of prosecutrix was recorded by Investigating Officer under section 161 Cr.P.C. Same is on record at page 36 of the paper book. The prosecutrix in her aforesaid statement has not supported the prosecution story as unfolded in F.I.R. To the contrary, prosecutrix has stated that she herself accompanied the applicant. No fraud and coercion has been played by applicant. The prosecutrix has further stated that she was residing with applicant out of her own sweet will. Physical relation was developed with the consent of prosecutrix. Subsequent to above, prosecutrix was medically examined. Her medico legal report is on record as Annexure-6 to the affidavit filed in support of present application for bail. The prosecutrix in her statement before the Doctor however resiled from her earlier statement. The Doctor who examined the prosecutrix did not find any sign of sexual assault. Certain samples were taken from the body of deceased for pathological examination. However, supplementary medico legal report of the prosecutrix has not been brought on record. Ultimately, statement of the prosecutrix was recorded under section 164 Cr.P.C. Same is on record as page 59 of paper book. The prosecutrix in her aforesaid statement has reiterated her earlier statement as recorded under section 161 Cr.P.C. During course of investigation, Investigating Officer discovered the date of birth of prosecutrix as recorded in School records which is mentioned as 30.5.2005. As such, prosecutrix was aged about 16 years and two months and 10 days on the date of occurrence. On the basis of above and other material collected during course of investigation, which is substantially adverse to applicant, Investigating Officer submitted charge-sheet dated 9.9.2021, whereby applicant has been charge sheeted under sections 363 and 366 IPC and Section 5/6 POCSO Act. Learned counsel for applicant contends that though applicant is named and charge sheeted accused but he is innocent. Applicant has been falsely implicated. Allegations made in F.I.R. are false and concocted. As such applicant is being falsely prosecuted in aforementioned case crime number. It is lastly submitted that applicant is a man of clean antecedents, inasmuch as he has no criminal history to his credit except the present one. It is then contended that as per the educational record of prosecutrix, date of birth of prosecutrix is 30.5.2005. As such, on date of occurrence prosecutrix was aged about 16 years two months and 10 days. As such, no offence under sections 5/6 of POCSO Act can be said to have been committed by applicant. Prosecutrix in her statements under section 161/164 Cr.P.C. has not supported the prosecution story as unfolded in F.I.R.. Prosecutrix is a consenting party. As such, no offence under section 363 and 366 IPC can be said to have been committed by applicant. It is lastly contended that prosecutrix in her aforesaid statements has further stated that she has solemnized marriage with applicant. As such, no offence under section 376 IPC can be said to have been committed by applicant. Though prosecutrix is below 18 years of age, marriage of the parties cannot be said to be void, by virtue of provisions of Hindu Marriage Act. Applicant is in jail since 21.8.2021. As such, he has undergone more than six months of incarceration. In case applicant is enlarged on bail he shall not misused the liberty of bail and shall co-operate with trial. On the aforesaid premise, it is urged that applicant is liable to be enlarged on bail. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicant is a named as well as charge-sheeted accused. Prosecutrix is a young girl aged about 16 years. Applicant is guilty of dislodging the modesty of prosecutrix. As such, applicant is not liable to be enlarged on bail. However, learned A.G.A. could not dispute the facts as noted above. Having heard learned counsel for applicant, learned A.G.A. for State, upon perusal of material brought on record as well as the complicity of applicant and accusation made but without making any comment on the merits of the case, applicant has made out a case for bail. Accordingly, bail application is allowed. Let the applicant Lavkush, 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 concerned with the following conditions which are being imposed in the interest of justice:- (i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW. (ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER IN ACCORDANCE WITH LAW. (v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. Order Date :- 29.3.2022 Arshad Digitally signed by ARSHAD MAHMOOD Date: 2022.03.30 15:33:24 IST Reason: Location: High Court of Judicature at Allahabad