Allahabad High Court
Kailash vs State Of U.P. on 22 July, 2021
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 16
Case :- BAIL No. - 7287 of 2021
Applicant :- Kailash
Opposite Party :- State of U.P.
Counsel for Applicant :- Manoj Kumar Misra
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
Heard Sri Manoj Kumar Misra, learned counsel for the applicant, learned A.G.A. for the State and perused the record.
On a query being put, learned AGA submitted that he has complete instructions in the matter, as such, this Court proceeded to hear the application for grant of bail on merits.
The present bail application has been filed by the applicant in F.I.R. No. 0050 of 2021, under Sections- 363, 366 IPC, Police Station- Kasimpur, District- Hardoi with the prayer to enlarge him on bail.
The submissions of learned counsel for the applicant are that the applicant is innocent person and has been falsely implicated in the case and he has no criminal history and he is in jail since 09.06.2021.
Learned counsel for the applicant further submits that as per the allegation made in the FIR, the applicant-Kailash has enticed away the victim on 13.12.2020, however, the FIR, in issue, was lodged on 04.02.2021 i.e. after about one and half month from the date of incident and this delay creates doubt in the story of the prosecution. He further submitted that in fact the victim on her own volition/free will went with the applicant and as such, the case under Sections 363, 366 IPC is not made out against the applicant. In this regard, he relied upon the statement of the victim recorded under Section 164 Cr.P.C. (Annexure No. 8 to this application). It is further stated that the victim solemnized marriage with the applicant, as stated by the victim herself. It is further stated that in the facts and circumstances of the case particularly the statements made by the victim under Section 161 and 164 Cr.P.C., no case is made out against the applicant. The prayer is to allow the bail application.
It is next submitted that there is no possibility of tampering of any evidence. In such circumstances, applicant is entitled for bail. It is also submitted that the applicant will never misuse the liberty of bail and shall fully cooperate in the investigation.
Learned A.G.A. opposes the prayer for grant of bail to the applicant. She submitted that the age of the victim is 16 years and as such, the application for bail is liable to be rejected.
In response, Sri Mishra, learned counsel for the applicant submitted that as per the statement of the victim under Section 161 Cr.P.C, she herself has stated that she is 18 years old. He further stated that as per the medical opinion/ossification report, the age of the victim is 16 years. He further stated that the victim is an illiterate, as such, she does not have any mark-sheet or school leaving certificate and she also does not have documentary proof regarding her age and considering this aspect of the case, the police authorities themselves have adopted the procedure for her medical examination, wherein, it has been found that the age of the victim is 16 years. He further stated that taking into consideration the age of the victim as 16 years as also the judgment of this Court passed in HABEAS CORPUS No. 21284 of 2018 (Deepa through her next friend Mithun v. State of U.P. and others) dated 03.08.2018, the age of the victim is liable to be treated as 18 years and the applicant is entitled to the benefit of the same. He also placed reliance on the judgment dated 25.02.2021 passed by the Apex Court in Criminal Appeal No. 175 of 2021 (Ram Vijay Singh v. State of U.P.) in support of his submission that in absence of any documentary proof of age as provided under Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015, the age determined by an ossification test can be considered.
The learned AGA also could not dispute the views taken by this Court in the judgment passed in HABEAS CORPUS No. 21284 of 2018 regarding determination of age of the victim and the observations of the Apex Court in the judgment dated 25.02.2021.
Considering the rival submissions of learned counsel for parties, material available on record, as well as totality of facts and circumstances as also the recitals in the judgment(s), referred above, and without expressing any opinion on the merit of the case, I am of the view that the applicant is entitled to be released on bail.
Let applicant- Kailash be released on bail in the aforesaid Case Crime Number on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
(1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.
(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.
(3) Applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 Cr.P.C.
(4) The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.
(5) The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
Order Date :- 22.7.2021
Arun/-
