Allahabad High Court
Shiv Kumar Saroj vs State Of U.P. And 3 Others on 31 July, 2023
Bench: Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:153781
Court No. - 84
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22840 of 2023
Applicant :- Shiv Kumar Saroj
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- J.P. Pandey,Devesh Pandey
Counsel for Opposite Party :- G.A.,Amrendra Nath Rai,Sanjay Singh
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the applicant and learned A.G.A. on the second bail application.
No one has put in appearance on behalf of opposite party no.2.
As per office report as the file of the first bail application is in the process of digitization. It was available on net which was placed before the Court.
The only point argued by the learned counsel for the applicant at the time of second bail application is that the first bail application of the applicant was rejected on the ground of minority of the victim and to prove the minority of the victim the transfer certificate of the victim in the Case Diary was placed before the Court. The counsel for the applicant placed before the Court judgement in P. Yuvaprakash Versus State Rep. By Inspector Of Police of the Apex Court passed in Criminal Appeal No(S). 1898 of 2023 on 18.07.2023, wherein the Apex Court did not rely upon the age mentioned in the transfer certificate issued by the school concerned and relied upon the medical examination report of the victim, whereby she was found to be major and finding the victim to be major on the date of the offence the appellant -accused was acquitted of the charge under Section 6 of POCSO Act. Further judgement of High Court of Meghalaya At Shillong passed in Shri. John Franklin Shylla Vs. State of Meghalaya & Anr., Crl. Petn. No.3 of 2023 dated 21.06.2023 and the judgement of High Court of Madhya Pradesh At Gwalior passed in Rahul Chandel Jatav Versus The State of Madhya Pradesh and Anr., Misc. Criminal Case No.24691 of 2023, dated 27.06.2023 were also placed before Court, wherein the FIR against the applicant in POCSO Act, I.T. Act and sections of rape where the victim girl was minor was quashed finding the victim to be a consenting party, but these judgments of High Court of Meghalaya At Shillong and High Court of Madhya Pradesh At Gwalior are the judgements of Single Bench not having binding effect on this Court otherwise also no law was laid down in these judgement.
The applicant, in the opinion of the Court, cannot take benefit of the judgement of the Apex Court in Criminal Appeal No(S).1898 of 2023 above because as per facts of the case in judgement and the facts of the case in hand are quite different. In the case before the Apex Court the victim was more than 17 years of age. She was running into her 18. As per the document she was apparently a consenting party. Once she had consumed poison, as she was adamant to live with the boy/ accused in that case. Most importantly the appellant/accused was acquitted by trial court and the High Court under Section 366 IPC and was convicted only under Section 6 of POCSO Act. The transfer certificate, which was disbelieved by the court was not produced by the prosecution therein, rather it was produced by the witness called by the court. The Apex Court opined that proving the age of the victim was the burden of prosecution and as the transfer certificate was not placed before the court by the prosecution the prosecution could not have been fallen back upon a document, which it had never relied upon. The birth record of the year 1997 was missing from the Municipal Board. The school, from where, the transfer certificate was produced before the Court the victim had studied in that school only for one year. On what basis the date of birth was mentioned in the transfer certificate/ school register the witness could not disclose before the Court. The prosecution could not prove there that there was any penetrative sexual assault as a result of coercion or compulsion on part of the appellant. While in the present case the facts are different. Here the victim was only 15 years of age on the date of incident. Her transfer certificate is produced by the prosecution, which is present in the case diary prepared by the investigating officer. Here, unlike the facts of the above judgment the section under which the applicant is charged are 376, 363, 366 IPC and 3/4 POCSO Act, while as per facts of the judgement of the Apex Court produced by the learned counsel for the applicant. There was no charge under Section 363 IPC and from the charges under Section 366 I.P.C. the appellant was acquitted by the trial court as well as by the High Court and the only conviction of the accused was under Section 6 of POCSO Act.
The submission of the learned counsel for the appellant cannot be appreciated being the facts of the judgement different from the facts of the case in hand. The application of the applicant is liable to be dismissed.
The second bail application is, however, dismissed.
Order Date :- 31.7.2023
Radhika
