Allahabad High Court
Sudama Kumar Kannaujiya @ Golu vs State Of U.P. And 3 Others on 13 May, 2024
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:85869
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14298 of 2024
Applicant :- Sudama Kumar Kannaujiya @ Golu
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Rakesh Kumar Upadhyay
Counsel for Opposite Party :- Anil Kumar Kannojia,Ashutosh Kumar Nishad,Bhriguram Ji,G.A.
Hon'ble Ajay Bhanot,J.
Matter is taken up in the revised call.
None appears on behalf of the informant. Name of counsel for the informant is shown in the cause list. Learned counsel for the applicant contends that the first informant is deliberately avoiding the hearing of the bail application only to prolong the incarceration of the applicant.
Shri Paritosh Kumar Malviya, learned AGA-I 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. 309 of 2023 at Police Station-Bhatni, District- Deoria under Sections 376, 504, 506 IPC and Section 3/4 of POCSO Act. The applicant is in jail since 24.02.2024.
The bail application of the applicant was rejected by the learned trial court on 21.03.2024.
The following arguments made by Shri Rakesh Kumar Upadhyay, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Paritosh Kumar Malviya, learned AGA-I from the record, entitle the applicant for grant of bail.
1. The victim was wrongly shown as a minor of 16 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 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) is contested on the following grounds:
(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.
(ii) The school records disclose her age as 24 years.
(iii) The victim in her statements under Sections 161 and 164 Cr.P.C. has stated that she is 25 years of age respectively.
(iv) The medical report drawn up to determine the age of the victim opines that she is above 25 years of age. In fact the victim is a major.
3. The victim and the applicant were intimate and had consensual physical relations.
4. The F.I.R. is the result of the said relationship going awry.
5. The applicant never gave a plighted word to marry the victim.
6. The criminal proceedings are being leveraged to extort money from applicant.
7. The victim in her statements under Sections 161 and 164 Cr.P.C. has admitted to intimacy with the applicant. However, false and aggravated statements were made in the latter part of the statements to save the failing prosecution case.
8. Major inconsistencies in the FIR, statements under Section 161 CrPC, Section 164 CrPC discredit the prosecution case.
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. Her conduct shows that the prosecution case is false.
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 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- Sudama Kumar Kannaujiya @ Golu 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 :- 13.5.2024
Jaswant
