Allahabad High Court
Chhotu vs State Of Up And 3 Others on 1 May, 2024
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:78157
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10391 of 2024
Applicant :- Chhotu
Opposite Party :- State Of Up And 3 Others
Counsel for Applicant :- Manjulesh Kumar Shukla,Yogesh Dutta Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Ajay Bhanot,J.
Matter is taken up in the revised call.
Shri Suchit Tandon, learned AGA contends that the police authorities in compliance of the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served the bail application upon the victim/legal guardian as well as upon the CWC.
By means of this bail application the applicant has prayed to be enlarged on bail in Case Crime No. 0157 of 2022 at Police Station Jalaun, District Jalaun under Sections 363, 366, 376 I.P.C. and Section 5J/(ii)/6 POCSO Act. The applicant is in jail since 06.10.2023.
The bail application of the applicant was rejected by the learned trial court on 28.11.2023.
The following arguments made by Shri Manjulesh Kumar Shukla, learned counsel and Yogesh Dutta Mishra, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Suchit Tandon, learned AGA from the record, entitle the applicant for grant of bail:
1. The victim was wrongly shown as a minor in the prosecution case only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.
2. Learned counsel for the applicant contests the age of the victim set out in the prosecution case in light of the judgement of this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021) on the following grounds:
(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.
(ii) The victim in her statement under Sections 161 and 164 Cr.P.C. has asserted that she is 19 years and 17 years of age respectively.
(iii) The medical report drawn up as per the latest scientific criteria and medical protocol to determine the age of the victim opines that she is 20 years of age. The victim is in fact a major.
3. The victim and the applicant were intimate and had eloped together.
4. The F.I.R. is the result of opposition of the victim's family to the said relationship.
5. The victim in her statements under Sections 161 and 164 Cr.P.C. has admitted to intimacy with the applicant. The victim has stated that she got married to the applicant of her own free will. Lastly, the victim has asserted that she had consensual physical relations with the applicant and that she is an expectant mother.
6. The victim has not made any allegation of abduction, wrongful detention or commission of rape against the applicant in her statements under Sections 161 and 164 Cr.P.C.
7. Major inconsistencies in the FIR, the statements under Section 161 and 164 Cr.P.C. discredit the prosecution case.
8. Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution.
9. The victim was never confined or bound down in any manner. The victim was present at various public places but never raised an alarm nor did she resist the applicant. The conduct of the victim shows that she was a consenting party.
10. The applicant does not have any criminal history apart from this case.
11. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.
In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant- Chhotu be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence or influence any witness during the trial.
(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iii) The learned trial court is directed to fix the sureties after due application of mind in light of the judgement passed by this Court in Arvind Singh v. State of U.P. Thru. Prin. Secy. Home Deptt. (Application U/S 482 No.2613 of 2023).
The learned trial court shall ensure that the right of bail of the applicant granted by this Court is not frustrated by arbitrary demands of sureties, or onerous conditions which are unrelated to the socioeconomic status of the applicant.
Before parting some observations have to be made in the facts of this case. The learned trial court has failed to comply with the judgment rendered by this Court in Monish (supra) regarding the manner of consideration of age of the victim in bail applications filed by the accused persons under the POCSO Act.
A copy of this order as well as a copy of the judgment in Monish (supra) shall be provided to the learned District Judge to ensure that the learned trial courts are guided by the law laid down by this Court.
It is clarified that the above observations shall not be construed adversely against any judicial officer.
Order Date :- 1.5.2024
Vandit
