Allahabad High Court
Anurudh vs State Of Up And 3 Others on 8 May, 2024
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:83239
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4880 of 2024
Applicant :- Anurudh
Opposite Party :- State Of Up And 3 Others
Counsel for Applicant :- Fakhruzzaman
Counsel for Opposite Party :- G.A.
Hon'ble Ajay Bhanot,J.
Matter is taken up in the revised call.
Shri Paritosh Kumar Malviya, learned A.G.A.-I for the State 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.622 of 2022 at Police Station-Kotwali Orai, District-Jalaun under Sections 363, 366, 376(3) IPC and Section 3/4(2) of POCSO Act. The applicant is in jail since 05.08.2023.
The bail application of the applicant was rejected by the learned trial court on 29.09.2023.
The following arguments made by Shri Samshuzzaman, learned counsel holding brief of Shri Fakhruzzaman, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Paritosh Kumar Malviya, learned A.G.A.-I from the record, entitle the applicant for grant of interim bail:
1. The victim was wrongly shown as a minor of 12 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.The age of the victim set out in the prosecution case is refuted 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 13 years and 2 months are unreliable.
(iii) The victim in her statement under Section 161 Cr.P.C. has stated that she is 15 years of age respectively.
(iv) The medical report sent by the Chief Medical Officer, Jalaun to determine the age of the victim opines that she is 18 years of age. The victim is a major.
3. The incident occurred on 26.11.2022 and the F.I.R. was got registered on 24.11.2022.
4. Delay of two days in lodgement of the F.I.R. in the facts of this case is fatal to the prosecution case.
5. The victim and the applicant were intimate.
6. The F.I.R. is the result of opposition of the victim's family to the said relationship with the applicant.
7. The victim in her statements under Section 161 Cr.P.C. and Section 164 Cr.P.C. has admitted to intimacy with the applicant and that she eloped with the applicant to Delhi and thereon to Faridabad. The victim has stated that she had consensual physical relations with the applicant. The victim in her statement under Section 164 Cr.P.C. has further added that she has got married to the applicant of her free will.
8. The victim has not made any allegation of commission of rape, wrongful detention or forceful assault against the applicant in her statements under Sections 161 Cr.P.C. and 164 Cr.P.C.
9. Major inconsistencies in the statements of the victim under Sections 161 Cr.P.C. and Section 164 Cr.P.C., as well as the recitals in the F.I.R. discredit the prosecution case.
10. Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution.
11. The applicant does not have any criminal history apart from the instant case.
12. 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 this wake, without expressing any opinion on merits of the case, I am of the view that the applicant is entitled to be enlarged on interim bail.
Let the applicant- Anurudh be released on interim 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.
The learned trial court is directed to fix the sureties after due application of mind in light of the judgement rendered 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.
Photostat copy of the medical report drawn up by the Chief Medical Officer to determine the age of the victim shall be duly attested and retained by the Registry as part of the records of the Court.
The original medical report, if any, shall be returned to the concerned Chief Judicial Magistrate for onward transmission to the concerned Investigating Officer.
Various other legal submissions as regards drawing up the medical report of the victim have been made by Shri Paritosh Kumar Malviya, learned A.G.A.-I in light of the judgment of this Court in Criminal Misc. Bail Application No.2322 of 2024 (Aman @ Vansh v. State of U.P. and 3 others) and also another judgement rendered by this Court in Habeas Corpus Writ Petition No.733 of 2020 (Pradeep Kumar Chauhan and another v. State of U.P. and 3 others).
Heard both the parties on the aforesaid issue of drawing up medical report to determine the age of the victim in the POCSO offences.
Judgment reserved.
Order Date :- 8.5.2024
Ashish Tripathi
