Allahabad High Court
Pankaj vs State Of U.P. And 3 Others on 7 April, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56099 of 2022
Applicant :- Pankaj
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Ansar Ahmad
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Ansar Ahmad, learned counsel for applicant and Sri Vimal Pandey, learned AGA for State.
2. Registry has placed a letter of Chief Judicial Magistrate, Etawah dated 03.01.2023 that notice of this application has already been served upon Informant, however, till date no one has entered appearance.
3. Applicant-Pankaj has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 154 of 2022, under Sections 363, 366, 376(3) IPC and 3/4(2) POCSO Act, Police Station Ekdil, District Etawah, after rejection of his bail application vide order dated 21.11.2022 passed by Additional Sessions Judge (POCSO Act), Etawah.
4. Narration of facts in FIR are that applicant has enticed away minor daughter of Informant and later on when she recovered her statement was recorded under Sections 161 and 164 Cr.P.C. wherein she has stated that it was a case of love affair and though they do not marry but lived together as husband and wife.
5. Learned counsel for applicant submits that according to FIR victim's age is disclosed as 16 years, however, according to radiological examination age of victim is about 13 years. It was a consensual relationship and it was specifically stated by victim in her statement also.
6. Learned AGA appearing for State has opposed bail and contended that victim was minor and, therefore, consent, if any, is immaterial. He also referred the judgment passed by Supreme Court in X (Minor) vs. The State of Jharkhand and another, (Criminal Appeal No. 263 of 2022), decided on 21.02.2022.
7. In the present case, above referred facts disclosed that victim is a minor girl, aged about 13 years and the stand of victim that it was a case of love affair, cannot be accepted since she is minor and consent of minor, if any, is immaterial as well as facts of present case are squarely covered by Supreme Court's judgment in X (Minor) vs. The State of Jharkhand (supra) and relevant para 6 thereof is mentioned hereinafter:
"6. The High Court was manifestly in error in allowing the application for bail. The reason that from the statement under Section 164 and the averments in the FIR, it appears that "there was a love affair" between the appellant and the second respondent and that the case was instituted on the refusal of the second respondent to marry the appellant, is specious. Once, prima facie, it appears from the material before the Court that the appellant was barely thirteen years of age on the date when the alleged offence took place, both the grounds, namely that "there was a love affair" between the appellant and the second respondent as well as the alleged refusal to marry, are circumstances which will have no bearing on the grant of bail. Having regard to the age of the prosecutrix and the nature and gravity of the crime, no case for the grant of bail was established. The order of the High Court granting bail has to be interfered with since the circumstances which prevailed with the High Court are extraneous in view of the age of the prosecutrix, having regard to the provisions of Section 376 of IPC and Section 6 of POCSO."
7. In view of above, no case of bail is made out.
8. However, the application is disposed of with direction to Trial Court to record statement of victim, if not already recorded, within a period of six months from today, if there is no other legal impediment. Thereafter applicant is at liberty to file fresh application for bail before Trial Court.
Order Date :- 7.4.2023
AK
