Anmol Kumar vs State Of U.P.And 3 Others
2022 Latest Caselaw 19107 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30000 of 2022
 

 
Applicant :- Anmol Kumar
 
Opposite Party :- State Of U.P.And 3 Others
 
Counsel for Applicant :- Suresh Dhar Dwivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Manish Mathur,J.

1. Counter affidavit filed today in Court by learned AGA is taken on record.

1A. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.

2. Notice had been issued to opposite party no.2 and as per office report dated 17.08.2022, it has been indicated that as per report of Chief Judicial Magistrate, Shahjahanpur, notices were served upon opposite party no.2 in person but no one has put in appearance on informant behalf till date.

2A. This first bail application has been filed with regard to Case Crime No.148 of 2022, under Sections 363,376 IPC and Section 3/4 Protection of Children From Sexual Offences Act and Section 3(2)V of S.C./S.T. Act, registered at Police Station Nigohi, District Shahjahanpur.

3. As per contents of FIR lodged against unknown person under section 363 IPC, the unknown person is said to have enticed away the minor sister of informant.

4. Learned counsel for applicant submits that the applicant has been taken into custody on the basis of statement of alleged victim recorded under sections 161 and 164 Cr.P.C. in which she has named the applicant with whom she had eloped. It is submitted that the applicant and the alleged victim were in a consensual relation-ship as is evident from her statement recorded under sections 161 and 164 Cr.P.C. in which she has admitted having married the applicant. It is submitted that although the radio-logical age of victim has been indicated as 16 years but as per judgment of Hon'ble the Supreme Court in the case of Jaya Mala v. Home Secretary, Government of J & K reported in 1982(2) SCC 538, a variation of two years can be taken with regard to same and as such it is submitted that the alleged victim is in fact major and in a consensual relationship with applicant who is in jail since 09.05.2022 with only charge-sheet having been filed.

5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that the minority of victim is clearly made out as well as the application of POCSO Act with regard to her statements recorded under sections 161 and 164 Cr.P.C.

6. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

7. Considering the submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that applicant has been taken into custody on the basis of statement of victim recorded under sections 161 and 164 Cr.P.C. in which she has stated that she had eloped with him. She has further given statement that she has subsequently married the applicant. Radio-logical age of victim has been indicated as 16 years but as per judgement of Hon'ble the Supreme Court indicated hereinabove in a variation of two years with regard to same is possible. The applicant is in jail since 09.05.2022 with trial not yet having commenced.

8. Primary purpose of promulgation of POCSO Act to prevent sexual exploitation of minors and would not, in the considered opinion of this Court, extend to romantic relation-ships between teenagers and adolescents as indicated in the judgment of High Court of Madras in the case of Vijayalakshmi and another v. State represented by the Inspector of Police and another, reported in MANU/TN/0254/2021 [Crl.O.P no.232 of 2021 and Crl. M.P. No.109 of 2021]. The relevant paragraph of the judgment is as under:-

"11. There can be no second thought as to the seriousness of offences under the POCSO Act and the object it seeks to achieve. However, it is also imperative for this Court to draw the thin line that demarcates the nature of acts that should not be made to fall within the scope of the Act, for such is the severity of the sentences provided under the Act, justifiably so, that if acted upon hastily or irresponsibly, it could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous. What came to be a law to protect and render justice to victims and survivors of child abuse, can, become a tool in the hands of certain sections of the society to abuse the process of law."

9. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.

10. Accordingly bail application is allowed.

11. Let applicant, Anmol Kumar, involved in the aforesaid case crime be released on bail on his 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 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 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.

Order Date :- 29.11.2022

Subodh/-