Allahabad High Court
Sourabh Gangwar vs State Of Up And 3 Others on 3 May, 2024
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:79904
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11790 of 2024
Applicant :- Sourabh Gangwar
Opposite Party :- State Of Up And 3 Others
Counsel for Applicant :- Prasant Rathor,Sanjay Gangwar
Counsel for Opposite Party :- Archana Singh,G.A.
Hon'ble Ajay Bhanot,J.
Matter is taken up in the revised call.
Shri Shrawan Kumar Dubey, 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. 627 of 2023 at Police Station- Sadar Bazar, District- Shajanpur under Sections 363, 366A, 376(3), 342, 506 IPC, Section 3/4(2) of POCSO Act, Section 3(2)5 SC/ST Act. The applicant is in jail since 11.09.2023.
The bail application of the applicant was rejected by the learned trial court on 03.01.2024.
The following arguments made by Sri Sanjay Gangwar, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Ms. Archana Singh, learned counsel on behalf of the victim's family as part of the free legal aid granted by the High Court Legal Services Committee upon recommendation of the Child Welfare Committee, and Sri Shrawan Kumar Dubey, learned AGA from the record, entitle the applicant for grant of bail:
1. The victim was wrongly shown as a minor of 14 years 6 months 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 14 years 2 months 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 18 years of age.
3. The delay in lodgment of the FIR in the facts and circumstances of the case is fatal to the prosecution case.
4. The victim and the applicant were intimate. They worked together in an acting drama tropic.
5. The F.I.R. is the result of opposition of the victim's family to the said relationship.
6. The victim in her statement under Sections 161 Cr.P.C. and 164 Cr.P.C. has admitted to eloping with the applicant. The two travelled to various places as per the statements. However in the latter part of the statements false and aggravated allegations have been made at the behest of her parents only to save the failing prosecution case.
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 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 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- Sourabh Gangwar 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
