Allahabad High Court
Dishant vs State Of U.P. And 3 Others on 14 February, 2023
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6976 of 2023
Applicant :- Dishant
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Chandra Bhan
Counsel for Opposite Party :- G.A.
Hon'ble Krishan Pahal,J.
1. As informed by learned AGA, notice has been served upon the informant on 10.02.2023.
2. Heard Sri Chandra Bhan, learned counsel for the applicant as well as Sri Ram Mohit Yadav, learned AGA for the State and perused the material placed on record.
3. The instant bail application has been filed u/s 439 of Cr.P.C. on behalf of the applicant with a prayer to release him on bail in Case Crime No. 401 of 2022, under Sections 363, 366, 376 of IPC and Sections 3/4 of POCSO Act, Police Station Madiyahun, District Jaunpur, during the pendency of trial.
4. As per prosecution story, the grand-daughter of the informant was found missing from her bed between 4 to 5 AM on 25.12.2022 by the informant and it was revealed that she used to talk to a boy through mobile bearing number 9411108616.
5. It is submitted by the learned counsel for the applicant that he has been falsely implicated in the present case. He is not named in the FIR and he has nothing to do with the said mobile number. The victim is a consenting party and as per her ossification test report, her age is 17 years and a leverage of two years may be granted to the applicant as per the settled law of Apex Court. To buttress his argument, learned counsel has placed much reliance upon the statement of the victim recorded u/s 164 Cr.P.C. wherein she has categorically stated that she had called the applicant and had gone with him to Chandigarh out of her own sweet will whereby she entered into corporeal relationship with him. On this count, learned counsel has placed much reliance on the judgments of Apex Court passed in case of Pramod Suryabhan Pawar vs. State of Maharashtra and Another reported in 2019 (9) SCC 608 and Ansaar Mohammad vs. State of Rajasthan and Another, reported in 2022 SCC OnLine SC 886, wherein it has been stated that entering into any kind of corporeal relationship with a person on the pretext of getting marriage cannot be termed as rape. He has also stated that there is no allegation of use of force against the victim. The applicant is languishing in jail since 06.01.2023 having no criminal history to his credit, deserves to be released on bail. In case, the applicant is released on bail, he will not misuse the liberty of bail and shall cooperate with the trial.
6. Per contra, learned A.G.A. has vehemently opposed the bail prayer of the applicant on the ground that as per the school certificate, her date of birth is 10.05.2007 and her age falls below 16 years. However, he could not dispute the fact with respect to the ossification test report of the victim recorded u/s 164 Cr.P.C.
7. POCSO Act was formulated to protect children under the age of 18 years from sexual exploitation. Nowadays more often than not it has become a tool for their exploitation. The Act was never meant to criminalise consensual romantic relationships between adolescents. However, this has to be seen from the facts and circumstances of each case. The fact of consensual relationship borne out of love should be of consideration while granting bail because it would amount to perversity of justice if the statement of victim was ignored and accused was left to suffer behind jail.
8. Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, stage of trial and considering the complicity of accused, severity of punishment, at this stage, without expressing any opinion on the merits of the case, I find it a fit case for releasing the applicant on bail.
9. Without expressing any opinion on the merits, the bail application is allowed. Let the applicant Dishant involved in aforesaid 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 that :-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
10. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
11. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
12. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 14.2.2023
Siddhant
