Allahabad High Court
Hari Shankar vs State Of U.P. And 3 Others on 4 January, 2023
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44237 of 2022
Applicant :- Hari Shankar
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Ruchita Jain
Counsel for Opposite Party :- G.A.,Navin Chandra Srivastava
Hon'ble Krishan Pahal,J.
Heard Ms. Ruchita Jain, learned counsel for the applicant as well as Sri Navin Chandra Srivastava, learned counsel for the informant as well as Sri Rajesh Kumar Srivastava, learned AGA for the State and also perused the material placed on record.
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. 184 of 2022, under Sections 363, 376(3) of IPC & Sections 3/4(2) of Protection of Children from Sexual Offences Act, Police Station Kotwali, District Jhansi, during the pendency of trial.
As per prosecution story, some unknown person is stated to have enticed away the minor daughter of the informant on 15.05.2022.
It is submitted by the learned counsel for the applicant that the applicant has been falsely implicated in the present case. The applicant was neither named in the FIR nor involved in any such offence as alleged in the FIR. His name has come up later on in the statement of the victim recorded u/s 164 Cr.P.C. wherein she has categorically stated that she had gone from her house out of her own sweet will and at the bus stand, she met the applicant and later on she married with him and remained with him for a considerable period of time and also entered into corporeal relationship with him twice. 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.
Learned counsel for the applicant has also placed much reliance upon the statement of Dr. Yogita Agarwal, Medical Officer, Women Hospital, Jhansi, wherein she has stated that on being enquired, the victim herself has stated that she is 20 years of age and also refused to get herself medically examined. Learned counsel has further stated that the victim had even gone to the house of the applicant after recording her statement u/s 164 Cr.P.C. although she has again return to her maternal home. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. The applicant is languishing in jail since 08.06.2022 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.
Per contra, Sri Navin Chandra Srivastava, learned counsel for the informant as well as Sri Rajesh Kumar Srivastava, learned AGA have vehemently opposed the bail prayer of the applicant on the ground that as per the school certificate of Class-V of the victim, her date of birth is 01.01.2007 which categorically depicts that she is minor and, as such, the matter of consent does not apply to the present case although, they could not dispute the facts as narrated by the victim in her statement recorded u/s 164 Cr.P.C.
POCSO 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.
Considering the rival submissions advanced by learned counsel for the parties and also going through the statement of the victim recorded u/s 164 Cr.P.C., this Court is of the view that it is a fit case for bail.
Without expressing any opinion on the merits, the bail application is allowed. Let the applicant Hari Shankar 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 :-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
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.
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 :- 4.1.2023
Siddhant
