Allahabad High Court
Brajesh Kumar vs State Of U.P. And Anr. on 3 September, 2021
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 16
Case :- BAIL No. - 1956 of 2021
Applicant :- Brajesh Kumar
Opposite Party :- State Of U.P. And Anr.
Counsel for Applicant :- Puspendra Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. and perused the record.
The present bail application has been filed by the applicant seeking bail in Case Crime No. 284 of 2019, under Sections-363, 366, 376 I.P.C. & 5/6 POCSO Act, Police Station-Kotwali Dehat, District Hardoi.
Learned counsel for the applicant while pressing the present bail application submitted that accused-applicant is innocent and has been falsely implicated in the instant case. It is submitted that offence, as alleged in the F.I.R., is not made out against the applicant. The F.I.R. was lodged by the informant alleging therein that the applicant enticed away the daughter of the informant, as such, initially the same was registered under Section 363, 366 I.P.C., however, after recovery of the victim, prosecution came to know about the age of the victim and on the basis of same Sections 376 I.P.C. and 5/6 POCSO Act have been added. He submitted that after being recovered the statement of victim was recorded under Section 161 Cr.P.C. As per this statement, the victim has not supported the story of the prosecution. In this statement, the victim stated that she on her own free will/ volition went with the applicant and solemnized the marriage with the applicant and from the wedlock they blessed with a girl child and at present she is one and half year old.
It is submitted that in same terms the victim has made statement under Section 164 Cr.P.C. before the Court concerned. He submitted that in the Habeas Corpus No.20566 of 2020 ( Smt.Vibha Thru Her Legal Guardian I.E.Aunti Bani Bitiya vs. State Of U.P.Thru Prin. Secy. Home Lucknow & Ors.), the victim/ detenue was produced before this Court and she made a statement before this Court that she is about 20 years old and performed marriage with the applicant. This Court has also recorded finding which is to the effect that as per medical opinion, the age of the victim/ detenue is 18 years and is having a child in her lap. In these circumstances of the case, the applicant is entitled to bail.
It is also submitted that there is no apprehension that after being released on bail, he may flee from the course of law or may otherwise misuse the liberty of bail and the applicant is in jail since 04.07.2020.
Learned A.G.A. has opposed the prayer for grant of bail but he could not dispute aforesaid aspects of the case. He submitted that as per school leaving certificate, age of the victim is 16 years.
In response to aforesaid, learned counsel for applicant submitted that there is discrepancy in the age of the victim, as such, the same is subject to the evidence adduced by the parties before the Court below. Moreover, at this stage of the bail the benefit, as held by this Court as also by the Hon'ble Apex Court, should be given to the applicant. In this regard, reliance has been placed on the judgment of the Division Bench 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, and on the basis of the same further submitted that the age of the victim is liable to be treated as 18 years.
Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and keeping in mind statement(s) of the victim as also the medical opinion and without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
Let applicant-Brajesh Kumar, be released on bail in aforesaid Case Crime Number on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against his under Section 229-A of the Indian Penal Code.
(iii) 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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
In case of breach of any of the above conditions, the Court below shall be at liberty to cancel the bail and proceed against the applicant in accordance with law.
This order shall not influence the trial Court for proceeding with the trial.
The application stands allowed.
The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by him 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.
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.
Order Date :- 3.9.2021
Vinay/-
