Allahabad High Court
Videsh Alias Videshiya vs State Of U.P. And Another on 28 January, 2023
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41754 of 2022
Applicant :- Videsh Alias Videshiya
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Siddarth Jaiswal,Ajay Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Krishan Pahal,J.
1. List has been revised.
2. As informed by learned A.G.A., notice to the informant has been served on 19.8.2022.
3. Heard Sri Ajay Pandey and Sri Siddarth Jaiswal, learned counsel for the applicant as well as Sri V.K.S. Parmar, learned A.G.A. for the State and perused the record.
4. Applicant seeks bail in Case Crime No. 80 of 2021, under Sections 363, 366, 376(3) I.P.C. and Section 3/4 POCSO Act, Police Station Kokhraj, District Kaushambi, during the pendency of trial.
5. As per prosecution story, the applicant is stated to have enticed away the minor daughter of the informant on 20.2.2021 at about 06:30 a.m. on a motorcycle along with co-accused person Chhatrapal @ Sallu.
6. Learned counsel for the applicant has stated that the applicant is absolutely innocent and has been falsely implicated in the present case. Learned counsel has stated that the victim is a consenting party. To buttress his arguments, learned counsel has placed much reliance on the statement of the victim recorded under Section 164 Cr.P.C. whereby she has categorically stated that she had gone with the applicant out of her own sweet will and was badly in love with him. She has also stated that she had married the applicant and wants to live with him. Learned counsel has stated that as per the said statement the age of the victim was 19 years. Learned counsel has further stated that as per the ossification test report the age of the victim has been found to be 17-18 years. Learned counsel has stated that a leverage of two years in upper side may be granted to the applicant in the light of settled judgments of the Apex Court. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. Learned counsel has stated that the applicant has no criminal antecedents to his credit. The applicant is languishing in jail since 21.6.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.
7. Per contra, learned A.G.A. has vehemently opposed the bail application on the ground that as per school certificate the date of birth of the victim is 10.8.2007 as such the matter of consent falls into insignificant and the applicant is not entitled for bail.
8. In rebuttal, learned counsel for the applicant has placed much reliance on the judgment of Apex Court in Sushil Kumar vs. Rakesh Kumar, (2003) 8 SCC 673, wherein it has been stated that it is more often in the Indian Society that person shows the age of their wards much below than their actual age. In the case of Brij Mohan Singh vs. Priya Brat Narain Sinha, AIR 1965 SC 282, this Court, inter alia, observed that in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. It is also settled by Apex Court that as per the medical records, a leverage of two years may be granted to the accused person.
9. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, going through the evidence on record and also taking into consideration the case law referred and also the statement of the victim recorded under Section 164 Cr.P.C., and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
10. Let the applicant- Videsh Alias Videshiya involved in aforementioned case crime number be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
(i). The applicant will not tamper with the evidence during the trial.
(ii). The applicant will not pressurize/ intimidate the prosecution witness.
(iii). The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iv). The applicant shall not commit an offence similar to the offence of which he is accused, or suspected of the commission of which he is suspected.
(v). The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
11. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. 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 :- 28.1.2023
Vikas
