Shiv Kumar vs State Of U.P. And 3 Ors.
2022 Latest Caselaw 7874 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11475 of 2021
 

 
Applicant :- Shiv Kumar
 
Opposite Party :- State Of U.P. And 3 Ors.
 
Counsel for Applicant :- Gajendra Kumar Mishra,Jalaj Kumar Gupta
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Lavania,J.

From perusal of the office report dated 13.06.2022 as well as the letter dated 10.06.2022 of the Chief Judicial Magistrate, Balrampur, it appears that service of notice on opposite party No. 2, is sufficient. However, on call, no one appeared on behalf of the opposite party No. 2 to oppose the bail application. Learned AGA is present in the Court. In these circumstances, the Court proceeded to hear the case on merits.

Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.

The present bail application has been filed on behalf of the applicant in Case Crime No. 04 of 2021, under Sections 363, 366-A, 376, I.P.C. and 3/4 POCSO Act, Police Station- Laliya, District Balrampur, with a prayer to enlarge him on bail.

While pressing the present application for bail, the submission of learned counsel for the applicant is that the applicant has falsely been implicated in the present case. The F.I.R. against the applicant and other co-accused person was lodged under Sections 363,506 I.P.C. After lodging of the F.I.R., the investigation was carried out and during the investigation so conducted the names of other co-accused persons were dropped and the charge sheet has been filed in the Court only against the applicant. It is further submitted that a perusal of the F.I.R. would show that Section 363 I.P.C. is not attracted in the instant case as the victim has herself stated that she on her own volition left the house of the informant. There is no allegation in the F.I.R. that the applicant has enticed away the daughter of the informant. It is stated that during the course of investigation the victim was recovered and her statement was recorded by the Investigating Officer. From the statement of victim, it appears that on 02.01.2021 the mother of the victim left her at the boundary of the village concerned and from there she alone went to village Tulsipur where she met with Shiv Kumar (applicant) and stayed with him for about 20-22 days and physical relations were established. The statement recorded under Section 161 Cr.P.C. in clear terms indicates that it is the victim who herself left her house, as such, no offence as indicated in the F.I.R. is made out against the applicant.

Further submission is that from perusal of the statement of the victim recorded under Section 164 Cr.P.C. before the Court concerned, it appears that in the same terms the victim has stated before the Court concerned and additionally the victim has also stated that she solemnized marriage with the applicant on 05.01.2021. This statement as also the statement made before the Investigating Officer shows that she was major at the relevant time. The victim before the Court concerned has specifically stated that she is 18 old.

Further submission of learned counsel for the applicant is that the medical opinion does not support the story of the prosecution. It is next stated that the document related to age relied upon by the prosecution is annexed as Annexure No.06 to the bail application, which appears to have been prepared only for the purpose of the present case.

It is further submitted that in fact the victim was major and the medical opinion regarding age of the victim was not obtained by the prosecution.

He also stated that from the story of the prosecution, it is not clear as to what is the basis of the date of birth indicated in the school leaving certificate. The age of the victim is in dispute, as such the same is subject to the evidence adduced by the parties before the Trial Court and at this stage of the bail, the applicant is entitled to the benefit of the pronouncements of this Court as also of the Hon'ble Supreme Court which are in relation to the determination of the age. In this regard, reliance has been placed on the judgment passed in the HABEAS CORPUS No. 21284 of 2018 (Deepa through her next friend Mithun v. State of U.P. and others), decided on 03.08.2018.

It is also submitted that the applicant is Jail since 27.01.2021 and there is no apprehension that after being released on bail, the applicant may flee from the course of law or may otherwise misuse the liberty of bail and he will cooperate in trial.

Learned AGA appearing on behalf of the State opposed the prayer for bail. It is stated that the victim at the relevant time was minor and the consent of minor is no consent in the eye of law. As such, the applicant is not entitled to be released on bail. However, they could not dispute the submissions of learned counsel for the applicant which are based upon the medical examination as also the statement of the victim recorded under Sections 161 and 164 Cr.P.C.

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 the statements of victim recorded under Section 161 Cr.P.C. and Section 164 Cr.P.C. as also the period of incarceration and without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.

Accordingly, the application for bail is allowed.

Let applicant - Shiv Kumar 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:-

(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 him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuse 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 fail 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.

(v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

(vii) The concerned Court/Authority/Official shall verify the authenticity of such 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 :- 25.7.2022

Arjun/-