High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50387 of 2022 Applicant :- Ashish Opposite Party :- State Of U.P And 3 Others Counsel for Applicant :- Ajay Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Ajay Kumar Srivastava, the learned counsel for applicant, the learned A.G.A. for State and Mr. R. P. Mishra Advocate holding brief of Mr. Maneesh Kumar, the learned counsel for first informant, who has put in appearance on behalf of first informant by filing his vakalatnama in Court today, which is taken on record. 2. Perused the record. 3. This application for bail has been filed by applicant-Ashish seeking his enlargement on bail in Case Crime No. 339 of 2022, under Sections 363, 376(3),506 I.P.C. and Section 3/4 (II) POCSO Act, Police Station- Inchauli, District- Meerut, during pendency of trial. 4. Record shows that in respect of an incident, which is alleged to have occurred on 27.08.2022, a delayed F.I.R. dated
Legal Reasoning
29.08.2022 was lodged by first informant Smt. Rekha (mother of prosecutrix) and was registered as Case Crime No. 339 of 2022, under Sections 363, 376,506 I.P.C. and Section 3/4 POCSO Act, Police Station- Inchauli, District- Meerut. In the aforesaid F.I.R. two persons, namely, Ashish and Sheenoo have been nominated as named accused whereas family members of Ashish have also been arraigned as accused. 5. The gravamen of the allegations made in the F.I.R is to the effect that named accused Ashish inticed away the minor daughter of first informant namely Tanya, aged about 15 years and 5 months. The F.I.R. further records that named accused- Ashish has dislodged the modesty of juvenile. 6. After registration of aforesaid F.I.R., Investigating officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. He recorded the statements of first informant and other witnesses under Section 161 Cr.PC wherein they have supported the prosecution story as unfolded in the F.I.R. The prosecutrix was recovered on 29.08.2022. Thereafter, statement of the prosecutrix was recorded under Section 161 Cr.P.C wherein she has not supported the prosecution story as unfolded in the F.I.R. The prosecutrix has further stated that she is a student of Class-Xth. Her date of birth is 22.07.2007. She accompanied the applicant out of her own free will. She is in love with applicant. It is further stated applicant used to put vermilion on her forehead. The applicant and prosecutrix are residing together as husband and wife. Thereafter, prosecutrix was requested for her medical examination, which was denied by her. Ultimately, the statement of prosecutrix was recorded under Section 164 Cr.P.C. wherein she has rejoined her earlier statement under Section 161 Cr.P.C. During Course of investigation, Investigating Officer recovered Scholar Registration and Transfer Certificate pertaining to the prosecutrix wherein her date of birth is recorded as 27.08.2007. The prosecutrix was thus aged about 15 years and 5 months on the date of occurrence, which is 27.08.2022. 7. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of only one of the named accused i.e. Ashish (applicant-herein) is established in the crime in question. Accordingly, Investigating Officer submitted the charge-sheet dated 14.09.2022 whereby applicant-Ashish has been charge-sheeted under Sections 363, 376(3), 506 I.P.C. and Section 3/4 (II) POCSO Act. 8. Learned counsel for applicant submits that though the applicant is a named and charge sheeted accused but he is innocent. It is then contended that there is no medical evidence to support the prosecution story as the prosecutrix herself refused for her medical examination. He further submits that as per oral statement of the prosecutrix as recorded under Sections 161/164 Cr.P.C., the prosecutrix is a consenting party. No forceful act was performed by applicant for dislodging the modesty of the prosecutix. Prosecutrix in her oral statements under Sections 161/164 has not supported the prosecution story as unfolded in the F.I.R. On the aforesaid premise, learned counsel for applicant submits that, no offence under Sections 363 and 376(3), 506 I.P.C. can be said to have been committed by applicant. Prosecutrix has accompanied the applicant out of her own free-will. In view of the statement given by the prosecutrix, no criminality can be attached to applicant. Applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 31.08.2022. As such, he has undergone more than two months of incarceration. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co- operate with trial. Charge-sheet having been submitted against applicant, therefore, the evidence sought to be relied upon by the prosecution against applicant, stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during course of trial. On the cumulative strength of above, learned counsel for applicant submits that applicant is liable to be enlarged on bail. 9. Per contra, the learned A.G.A. and the learned counsel representing first informant have opposed the present application for bail. Learned A.G.A. contends that applicant is not only a named accused but also a charge-sheeted accused. As such, applicant does not deserve any sympathy of this Court. He further submits that from the material on record it is prima- facie established that on the date of occurrence the prosecutrix was aged about 15 years and 5 months. . Learned A.G.A. has invited the attention of Court to the the judgement of Apex Court in X (Minor) Vs. State of Jhankhand MANU/SCOR/26579/2022 and on basis thereof, he submits that irrespective of the fact, prosecutrix was willingly living with applicant, she having not supported the prosecution story as unfolded in the F.I.R., in her statements under Sections 161/164Cr.P.C, yet applicant does not deserve any indulgence by this Court. Therefore, present application for bail is liable to be rejected.
Legal Reasoning
10. When confronted with above, learned counsel for applicant could not over come the same. 11. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant and upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that the date of birth of prosecutrix as recorded in her educational certificate as 20.03.2007, she was aged about 15 year and 5 months on the date of concurrence i.e. 22.08.2022 ,the judgement of the Apex Court as noted above and the provisions contained in Sections 3/4 (II) and Section 6 POCSO Act but without expressing any opinion on merits of the case, this Court does not find any good ground to enlarge the applicant on bail. 12. Consequently, present application for bail fails and is therefore liable to rejected. 13. Accordingly, it is rejected. Order Date :- 10.11.2022 YK Digitally signed by YASHWANT KUMAR Date: 2022.11.11 10:32:02 IST Reason: Location: High Court of Judicature at Allahabad