Allahabad High Court
Raj Alias Baniya vs State Of U.P. And 3 Others on 3 May, 2024
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:80085
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11162 of 2024
Applicant :- Raj Alias Baniya
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Jay Prakash Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Ajay Bhanot,J.
Matter is taken up in the revised call.
Sri Ranjit Sagar, 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 the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 586 of 2020 at Police Station- Sahibabad, District- Ghaziabad under Sections 363, 366, 376 IPC and Section 3/4 of POCSO Act. The applicant is in jail since 23.02.2024.
The bail application of the applicant was rejected by the learned trial court on 05.03.2024.
The following arguments made by Sri Dheeraj Kumar Pandey, learned counsel holding brief of Sri Jay Prakash Yadav, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Sri Ranjit Sagar, learned AGA from the record, entitle the applicant for grant of bail:
1. The victim was wrongly shown as a minor of 17 years in the F.I.R. 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) and on the following grounds:
(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.
(ii) The age of the victim was incorrectly got registered in the school records by the victim's parents to give her an advantage in life. There is no lawful basis for the age related entry of the victim in the school records. The school records disclosing her age as 17 years are unreliable, since the victim is a major.
(iii). Medical report drawn up to determine the age of the victim opines that she is about 19 years of age.
3. The victim and the applicant were intimate.
4. The F.I.R. is the result of opposition of the victim's family to the said relationship.
5. The victim in her statement under Sections 161 Cr.P.C. and 164 Cr.P.C. has admitted to intimacy with the applicant and that she eloped with him. The victim has also stated that she got married with the applicant of her own free will. Lastly, the victim has asserted that she had a consensual physical relations with the applicant and wants to stay with him.
6. The victim has not made any allegation of commission of rape, abduction or forceful assault by the applicant in her statements under Section 161 Cr.P.C and Section 164 Cr.P.C.
7. Major inconsistencies in the F.I.R., statements of the victim under Section 161 Cr.P.C. and under Section 164 Cr.P.C. discredit the prosecution case.
8. The victim was never confined or bound down. She was at public places but never resisted the applicant nor raised an alarm. Her conduct shows that she was a consenting party.
9. Medical evidence to corroborate the commission of rape has not been produced by the prosecution.
10. The applicant has explained his criminal history. It is contended that the applicant belongs to the economically poor strata of the society and is a convenient scapegoat for the police authorities. The applicant has been falsely nominated in a number of cases only to show the proficiency of the police investigators. The said cases do not have any bearing on the instant bail application.
11. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to cooperate with the court 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- Raj Alias Baniya 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.
The trial court while rejecting the bail application has neglected to consider the medical opinion/ossification test drawn up to determine her age which opines that the victim is between 18 years of age in the light of the law laid down by this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021).
A copy of this order along with the judgment of Monish (supra) be provided to the District Judge to alert the concerned Presiding Officer of the law laid down by this Court in Monish (supra) and ensure that it is adhered to in an appropriate manner.
Order Date :- 3.5.2024
Pravin
