Allahabad High Court
Riyaj Ali vs State Of U.P. And 3 Others on 21 April, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9150 of 2023
Applicant :- Riyaj Ali
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Sanjay Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
Heard Sri Anirudh Singh, Advocate, holding brief of Sri Sanjay Kumar Singh, learned counsel for applicant and Sri Markandey Singh, Brief Holder for State.
Applicant has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. in Case Crime No.0257 of 2022 under Sections 363, 366, 376(3) I.P.C. and 3/4 of POCSO Act, Police Station- Mirzamurad, District - Varanasi after rejection of his Bail Application vide order dated 06.02.2023 passed by Additional District and Sessions Judge/Special Judge, (POCSO Act), Court No.2, Varanasi.
In the present case, according to the educational document, age of victim is about 12 years. She has stated in her statement recorded under Sections 161 and 164 Cr.P.C. that she, on her own will, accompanied with applicant and had physical relationship also, however, she has added in statement recorded under Section 164 Cr.P.C. that applicant has made relationship against her will.
Learned counsel for applicant has vehemently tried to make out a case of bail on the ground that it was a case of consensual relationship and love affair, however, failed as facts of present case are squarely covered by a judgment passed by Supreme Court in case of X(Minor) Vs. The State of Jharkhand and Anr. in Criminal Appeal No. 263 of 2022 dated 21.02.2022 where Supreme Court has dealt with a situation as similar to present case and has considered the averment in regard to love-affair and relevant paragraph No.6 is reproduced 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."
Therefore, considering the age of victim being 14 years and rejecting plea of 'love affair' in tender age, in view of X(Minor)(Supra), at this stage, no case of bail is made out and prayer for bail is rejected, at this stage learned counsel for applicant prayed that statement of victim may be recorded expeditiously.
Accordingly, this bail application is disposed of with direction that statement of victim shall be recorded within a period of eight weeks from today, if there is no legal impediment and thereafter applicant will have liberty to file a fresh bail application before Trial Court.
Registrar(Compliance) is directed to take steps.
Order Date :- 21.4.2023
P. Pandey
