Allahabad High Court
Deva Sharma vs State Of Up And 3 Others on 23 May, 2024
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:93936
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14602 of 2024
Applicant :- Deva Sharma
Opposite Party :- State Of Up And 3 Others
Counsel for Applicant :- Pankaj Kumar Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Ajay Bhanot,J.
Matter is taken up in the revised call.
Shri Rishi Chaddha, 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. 67 of 2024 at Police Station Kotwali Padrauna, District Kushinagar under Sections 376, 452 I.P.C. and Section 3/4 POCSO Act. The applicant is in jail since 14.02.2024.
The bail application of the applicant was rejected by the learned trial court on 15.03.2024.
The following arguments made by Shri Pankaj Kumar Yadav, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Rishi Chaddha, learned AGA from the record, entitle the applicant for grant of bail:
1. The victim was wrongly shown as a minor of 16 years and 11 months of age in the FIR 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 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 legal basis for age related entries in the school records. The school records disclosing her age as 16 years and 11 months are unreliable.
(iii) The victim in her statements under Sections 161 and 164 Cr.P.C. has asserted that she is 18 years and 16 years of age.
(iv) 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 18 years of age. The victim is in fact a major.
3. The victim and the applicant were intimate and had eloped together.
4. The victim and the applicant reside in the same neighbourhood.
5. The applicant has been falsely nominated on account of a running feud between the two families.
6. On the date of incident an altercation took place between the parties.
7. False and aggravated allegations were made by the victim in her statements under Sections 161 and 164 Cr.P.C. at the behest of her family members only to save the failing prosecution case.
8. As per the statement of the victim under Section 161 Cr.P.C. the incident occurred at her house. There is no sign of forced entry. However, the victim in her statement under Section 164 Cr.P.C. the aforesaid lacunae was sought to be filled by the victim who made a contrary assertion to the effect that the door of the house was left open which facilitated the applicant's entry.
9. Major inconsistencies in the FIR, the statement under Section 161 and 164 Cr.P.C. 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 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.
12. The applicant does not have any criminal history apart from this case.
13. 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- Deva Sharma 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.
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 :- 23.5.2024
Vandit
