Sunil Sonkar v. State of U.P. and

2. Heard Sri D.K.Ojha, learned counsel for the applicant, Sri Alok Pandey, learned counsel for the first informant and Sri Ajay Singh, learned A.G.A.-I for the State and perused the material on record.

3. This bail application under Section 483 of B.N.S.S., 2023 has been filed by the applicant- Sunil Sonkar, seeking enlargement on bail during trial in connection with Case Crime No. 58 of 2024, under Sections 363, 366, 376, 467, 468, 471 I.P.C. and Section 3/4 POCSO Act, Police Station Kachhwa, District Mirzapur.

4. The first information report of the present matter was lodged on 03.06.2024 by Rajesh Pasi against the applicant alleging therein that his daughter aged about 16 years has run away with the applicant on 28.04.2024 at about 5 pm. She was searched a lot but could not be traced.

5. Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. It is submitted that during investigation the victim states of going with the applicant out of her own sweet-will and coming to Allahabad for marriage and getting an order of stay from the High Court. It is submitted that the victim travelled to various places with the applicant without any objection or resistance. It is submitted that the applicant filed a writ petition before this court being Criminal Misc. Writ Petition No. 14097 of 2024 (Sunil Sonkar Vs. State of U.P. and 3 others) in which vide order dated 27.08.2024 a Division Bench of this Court stayed the arrest of the petitioner till submission of police report under Section 173(2) Cr.P.C. if it was found that the victim has attained the age of majority and her statement under Section 164 Cr.P.C. is in favour of the petitioner therein. The said order has been placed before the Court which is annexed as Annexure-3 to the affidavit which reads as under:- "1. Heard Sri Anurag Kumar Pandey, learned Advocate holding brief of Sri Yatharth Srivastava, learned counsel for the petitioner, Sri Gyanedra Pratap Singh, learned counsel for the informant and Sri Rajesh Kumar Rao, learned A.G.A. appearing for the State-respondents.

2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 03.06.2024 registered as Case Crime No.0058 of 2024, under Sections- 363, 366 I.P.C., Police Station -Kachhwa, District- Mirzapur, and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

3. On 14.08.2024 following order was passed:- "Heard learned counsel for the petitioner and learned AGA for the State and Sri Rashid Ali, Advocate, who has filed Vakalatnama on behalf of respondent no. 4, which is taken on record. This writ petition has been filed challenging the first information report dated 03.06.2024, arising out of Case Crime No. 58 of 2024, under Section 363 and 366 of IPC, Police Station Kachhwa, District Mirzapur. Contention of learned counsel for the petitioners is that victim Poonam, as per birth certificate registered on 16.8.2024, was above 18 years of age and she was living with the petitioner. Sri Gyanendra Pratap Singh, (advocate roll no. A/G 0205/12), learned counsel appearing for respondent no. 3, submits that the respondent no. 4 is infact not above 18 years of age. It shall be in the fitness of things that the age of the respondent no. 4 be determined by the method of ossification test and also her statement under Section 164 Cr.P.C. be got recorded before a competent Magistrate on 22.8.2024. The investigating officer to facilitate in determination of age and in recording of statement of respondent no. 4. List this case on 27.8.2024, as fresh. Till the next date of listing, no coercive action shall be taken against the petitioner in aforesaid case crime, subject to cooperation of petitioner and respondent no. 4 in the investigation. When the case is listed next, name of Sri Gyanendra Pratap Singh, learned counsel for respondent no. 3 and Sri Rashid Ali, learned counsel for respondent no. 4 be shown in the cause list."

4. Pursuant to the aforesaid order, learned A.G.A. pointed out that ossification test of the victim has taken place, however, he is not having the report.

5. Learned counsel for the petitioner admitted the fact that the statement of the victim under Section 164 Cr.P.C. has not been recorded as yet.

6. In such view of the matter, learned counsel for the informant is raising fingers about the manner in which the case is proceeding.

7. Learned counsel for the respondents submits that the victim is the respondent herein and she undertakes that she will remain present on 04.9.2024 before the Magistrate concerned for recording her statement under Section 164 Cr.P.C.

8. In such view of the matter, it is provided that the Investigating Officer as well as the Chief Judicial Magistrate concerned shall ensure that the statement of the victim shall be recorded on that date. In case, the petitioner fails to produce the victim-respondent no. 4 Poonam on that date for recording her statement under Section 164 Cr.P.C., adverse inference shall be drawn against the petitioner.

9. After recording statement of the victim under Section 164(3) Cr.P.C. the Investigating Officer shall proceed in the light of the ossification test as well as the statement recorded under Section 164 Cr.P.C.

10. Be that as it may, the writ petition is disposed off with a direction to the respondent no.4-Poonam to appear before the Chief Judicial Magistrate concerned for recording her statement under Section 164 of Cr.P.C., on 04.9.2024. In the event, respondent no.4 appears before the Chief Judicial Magistrate concerned on that date, the Chief Judicial Magistrate concerned shall record her statement under Section 164 Cr.P.C. on that date and thereafter the Investigating Officer shall proceed in accordance with law.

11. The arrest of the petitioner shall be subjected to the 164 Cr.P.C. statement of the girl and her age.

12. In the event, if it is found that she had attained the age of majority and her 164 Cr.P.C. statement favours the petitioner, then the petitioner shall not be arrested till the submission of report by the police under Section 173(2) Cr.P.C. Otherwise, the procedure of law would follow against the petitioner and the protection given to the petitioner would automatically stands vacated."

6. It is submitted that the radiological age of the victim was opined by the doctor to be 17 to 18 years and thus she was a major. It is submitted that the present case is a case of elopement. It is submitted that the victim and the applicant lived together for about 31/2 months but the victim did not resent or oppose the same. They travelled to various places through various modes but without any objection. It is further submitted that as per the educational records the date of birth of the victim is 05.07.2006 and thus she was aged about 17 years & 09 months at the time of incident which also is in consonance with her radiological age. The applicant has no criminal history as stated in para 22 of the affidavit and is in jail since 13.06.2025.

7. Per contra, learned counsel for the State opposed the prayer for bail.

8. After having heard learned counsel for the parties and perusing the record, it is evident that the victim and the applicant went together and lived for a long time. A writ petition filed by the applicant was also heard by a Division Bench of this Court in which protective order was granted subject to certain conditions passed therein. The present case appears to be a case of elopement.

9. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

10. Let the applicant- Sunil Sonkar, 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. (ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that he 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his 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, in accordance with law, under section 174-A I.P.C. (v) 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

11. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

12. The bail application is allowed.

13. Pending application (s), if any, shall stand disposed of. Order Date :- 5.8.2025 AS Rathore (Samit Gopal,J.) ABHISHEK SINGH RATHOR High Court of Judicature at Allahabad

2. Heard Sri D.K.Ojha, learned counsel for the applicant, Sri Alok Pandey, learned counsel for the first informant and Sri Ajay Singh, learned A.G.A.-I for the State and perused the material on record.

3. This bail application under Section 483 of B.N.S.S., 2023 has been filed by the applicant- Sunil Sonkar, seeking enlargement on bail during trial in connection with Case Crime No. 58 of 2024, under Sections 363, 366, 376, 467, 468, 471 I.P.C. and Section 3/4 POCSO Act, Police Station Kachhwa, District Mirzapur.

4. The first information report of the present matter was lodged on 03.06.2024 by Rajesh Pasi against the applicant alleging therein that his daughter aged about 16 years has run away with the applicant on 28.04.2024 at about 5 pm. She was searched a lot but could not be traced.

5. Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. It is submitted that during investigation the victim states of going with the applicant out of her own sweet-will and coming to Allahabad for marriage and getting an order of stay from the High Court. It is submitted that the victim travelled to various places with the applicant without any objection or resistance. It is submitted that the applicant filed a writ petition before this court being Criminal Misc. Writ Petition No. 14097 of 2024 (Sunil Sonkar Vs. State of U.P. and 3 others) in which vide order dated 27.08.2024 a Division Bench of this Court stayed the arrest of the petitioner till submission of police report under Section 173(2) Cr.P.C. if it was found that the victim has attained the age of majority and her statement under Section 164 Cr.P.C. is in favour of the petitioner therein. The said order has been placed before the Court which is annexed as Annexure-3 to the affidavit which reads as under:- "1. Heard Sri Anurag Kumar Pandey, learned Advocate holding brief of Sri Yatharth Srivastava, learned counsel for the petitioner, Sri Gyanedra Pratap Singh, learned counsel for the informant and Sri Rajesh Kumar Rao, learned A.G.A. appearing for the State-respondents.

2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 03.06.2024 registered as Case Crime No.0058 of 2024, under Sections- 363, 366 I.P.C., Police Station -Kachhwa, District- Mirzapur, and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

3. On 14.08.2024 following order was passed:- "Heard learned counsel for the petitioner and learned AGA for the State and Sri Rashid Ali, Advocate, who has filed Vakalatnama on behalf of respondent no. 4, which is taken on record. This writ petition has been filed challenging the first information report dated 03.06.2024, arising out of Case Crime No. 58 of 2024, under Section 363 and 366 of IPC, Police Station Kachhwa, District Mirzapur. Contention of learned counsel for the petitioners is that victim Poonam, as per birth certificate registered on 16.8.2024, was above 18 years of age and she was living with the petitioner. Sri Gyanendra Pratap Singh, (advocate roll no. A/G 0205/12), learned counsel appearing for respondent no. 3, submits that the respondent no. 4 is infact not above 18 years of age. It shall be in the fitness of things that the age of the respondent no. 4 be determined by the method of ossification test and also her statement under Section 164 Cr.P.C. be got recorded before a competent Magistrate on 22.8.2024. The investigating officer to facilitate in determination of age and in recording of statement of respondent no. 4. List this case on 27.8.2024, as fresh. Till the next date of listing, no coercive action shall be taken against the petitioner in aforesaid case crime, subject to cooperation of petitioner and respondent no. 4 in the investigation. When the case is listed next, name of Sri Gyanendra Pratap Singh, learned counsel for respondent no. 3 and Sri Rashid Ali, learned counsel for respondent no. 4 be shown in the cause list."

4. Pursuant to the aforesaid order, learned A.G.A. pointed out that ossification test of the victim has taken place, however, he is not having the report.

5. Learned counsel for the petitioner admitted the fact that the statement of the victim under Section 164 Cr.P.C. has not been recorded as yet.

6. In such view of the matter, learned counsel for the informant is raising fingers about the manner in which the case is proceeding.

7. Learned counsel for the respondents submits that the victim is the respondent herein and she undertakes that she will remain present on 04.9.2024 before the Magistrate concerned for recording her statement under Section 164 Cr.P.C.

8. In such view of the matter, it is provided that the Investigating Officer as well as the Chief Judicial Magistrate concerned shall ensure that the statement of the victim shall be recorded on that date. In case, the petitioner fails to produce the victim-respondent no. 4 Poonam on that date for recording her statement under Section 164 Cr.P.C., adverse inference shall be drawn against the petitioner.

9. After recording statement of the victim under Section 164(3) Cr.P.C. the Investigating Officer shall proceed in the light of the ossification test as well as the statement recorded under Section 164 Cr.P.C.

10. Be that as it may, the writ petition is disposed off with a direction to the respondent no.4-Poonam to appear before the Chief Judicial Magistrate concerned for recording her statement under Section 164 of Cr.P.C., on 04.9.2024. In the event, respondent no.4 appears before the Chief Judicial Magistrate concerned on that date, the Chief Judicial Magistrate concerned shall record her statement under Section 164 Cr.P.C. on that date and thereafter the Investigating Officer shall proceed in accordance with law.

11. The arrest of the petitioner shall be subjected to the 164 Cr.P.C. statement of the girl and her age.

12. In the event, if it is found that she had attained the age of majority and her 164 Cr.P.C. statement favours the petitioner, then the petitioner shall not be arrested till the submission of report by the police under Section 173(2) Cr.P.C. Otherwise, the procedure of law would follow against the petitioner and the protection given to the petitioner would automatically stands vacated."

6. It is submitted that the radiological age of the victim was opined by the doctor to be 17 to 18 years and thus she was a major. It is submitted that the present case is a case of elopement. It is submitted that the victim and the applicant lived together for about 31/2 months but the victim did not resent or oppose the same. They travelled to various places through various modes but without any objection. It is further submitted that as per the educational records the date of birth of the victim is 05.07.2006 and thus she was aged about 17 years & 09 months at the time of incident which also is in consonance with her radiological age. The applicant has no criminal history as stated in para 22 of the affidavit and is in jail since 13.06.2025.

7. Per contra, learned counsel for the State opposed the prayer for bail.

8. After having heard learned counsel for the parties and perusing the record, it is evident that the victim and the applicant went together and lived for a long time. A writ petition filed by the applicant was also heard by a Division Bench of this Court in which protective order was granted subject to certain conditions passed therein. The present case appears to be a case of elopement.

9. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

10. Let the applicant- Sunil Sonkar, 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. (ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that he 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his 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, in accordance with law, under section 174-A I.P.C. (v) 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

11. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

12. The bail application is allowed.

13. Pending application (s), if any, shall stand disposed of. Order Date :- 5.8.2025 AS Rathore (Samit Gopal,J.) ABHISHEK SINGH RATHOR High Court of Judicature at Allahabad