Allahabad High Court
Vinod Kumar vs State Of U.P. Through Additional ... on 27 July, 2022
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 11
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1832 of 2022
Applicant :- Vinod Kumar
Opposite Party :- State Of U.P. Through Additional Chief Secretary, Home Department And 3 Others
Counsel for Applicant :- Ankit Singh
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
Counter affidavit filed today is taken on record.
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. 159 of 2021, under Sections 363,366,376(2),506 I.P.C. and 5/6 POCSO Act, Police Station-Maharajganj, District-Raebareli.
Learned counsel for the applicant submitted that accused-applicant is innocent and has been falsely implicated in the instant case. Submission is that the applicant has not committed the crime, as indicated in the FIR. It is further submitted that the FIR in issue was lodged by the mother of the victim alleging therein that the applicant along with the co-accused enticed away the victim (daughter of the informant). As per the FIR, the incident took place on 21.06.2021. It is further stated that during the investigation the statement of the victim was recorded under Section 161 Cr.P.C. in which the victim has stated that she on her own volition left her parental house and went with the applicant to Delhi and stayed there with the applicant for about ten days and physical relations were established. At this juncture, learned counsel for the applicant submitted that the victim was mature enough to understand her right and wrong and she presented herself to be a major.
In continuation, it is stated that as per the opinion of the Doctor, which is based upon the X-ray report and a copy of which is annexed as Annexure No.07 to the bail application, the victim at the relevant time was 17 years old, which has not been disputed by the learned A.G.A. Further submission is that the victim has refused to get her medical examination.
In continuation, it is further stated that from the statement recorded under Section 164 Cr.P.C. before the Court concerned, it is apparent that the victim on her own volition left her house and went with the applicant. However, considering the age of the victim, as indicated in the F.I.R., the prosecution added Section 376 (2) I.P.C. and Section 5/6 of the POCSO Act.
He next submitted that the age of the victim is in dispute, which 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 of the victim. 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.
Learned A.G.A. appearing on behalf of the State vehemently 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, he could not dispute the submissions of learned counsel for the applicant.
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 the victim recorded under Sections 161 Cr.P.C.and 164 Cr.P.C. as also taking note of the facts related to the medical opinion and 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 the applicant - Vinod 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 :- 27.7.2022
Arjun/-
