Allahabad High Court
Krishna Kushwaha @ Visvajeet vs State Of U.P. And 3 Others on 23 April, 2025
Author: Krishan Pahal
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:61790
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5576 of 2025
Applicant :- Krishna Kushwaha @ Visvajeet
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Ajit Pratap Kushwaha,Amar Bahadur Maurya
Counsel for Opposite Party :- G.A.,Lackey Keshari
Hon'ble Krishan Pahal,J.
1. List has been revised.
2. In compliance of order of this Court, photostat copy of the ossification test report of the victim has been received, which indicates her age to be between 18-20 years.
3. Heard Sri Amar Bahadur Maurya, learned counsel for the applicant and Sri Ashutosh Kumar Pandey, Advocate holding brief of Sri Lackey Keshari, learned counsel for the informant as well as Sri Pranshu Kumar, learned A.G.A. for the State and perused the record.
4. Applicant seeks bail in Case Crime No.203 of 2024, under Sections 64(2)m, 137(2), 351(3), 352 B.N.S.S. and 5L/6 POCSO Act, Police Station- Dhanapur, District- Chandauli, during the pendency of trial.
PROSECUTION STORY:
5. The applicant is stated to have enticed away the minor daughter of the informant aged about 12 years on 19.11.2024 at about 08:00 a.m. The applicant is even stated to have threatened the informant to marry her daughter.
ARGUMENTS ON BEHALF OF APPLICANT:
6. The applicant is absolutely innocent and has been falsely implicated in the present case.
7. The FIR is delayed by about four days and there is no explanation of the said delay caused.
8. The victim is major, although she is stated to be 12 years old as per the school certificate, but the said school certificate has no evidentiary value. As per the ossification test report, her age has come out to be between 18-20 years.
9. It is true that applicant is a married person having one daughter from his marriage, but the case, if any, may not go beyond deleted Section 497 I.P.C., which was declared ultra vires by the Supreme Court in the case of Joseph Shine v. Union of India, AIR 2018 SC 4898.
10. There is no medical corroboration of the incident, as such, the applicant is entitled for bail. There is no criminal history of the applicant. The applicant is languishing in jail since 16.12.2024 and is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail.
ARGUMENTS ON BEHALF OF STATE/OPPOSITE PARTY:
11. The bail application has been opposed on the ground that as per the birth certificate of the victim, which is a valid document as per Section 94 of Juvenile Justice (Care and Protection of Children) Act, her date of birth is 16.8.2012, as such, the ossification test report cannot be taken into consideration.
12. Learned counsel for the informant has also placed much reliance on the judgments of the Supreme Court in Jarnail Singh vs State Of Haryana, (2013) 7 SCC 263 and State of M.P. vs. Anoop Singh, (2015) 7 SCC 773.
CONCLUSION:
13. In light of the judgement of the Supreme Court passed in Niranjan Singh and another vs Prabhakar Rajaram Kharote and others AIR 1980 SC 785, this Court has avoided detailed examination of the evidence and elaborate documentation of the merits of the case as no party should have the impression that his case has been prejudiced. A prima facie satisfaction of case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.
14. The well-known principle of "Presumption of Innocence Unless Proven Guilty," gives rise to the concept of bail as a rule and imprisonment as an exception.
15. A person's right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because the person is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one's life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. The said principle has been recapitulated by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and Ors., 2022 INSC 690.
16. Reiterating the aforesaid view the Supreme Court in the case of Manish Sisodia Vs. Directorate of Enforcement 2024 INSC 595 has again emphasised that the very well-settled principle of law that bail is not to be withheld as a punishment is not to be forgotten. It is high time that the Courts should recognize the principle that ?bail is a rule and jail is an exception?.
17. Learned AGA could not bring forth any exceptional circumstances which would warrant denial of bail to the applicant.
18. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA.
19. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, taking into consideration the fact that victim was 18-20 years old as per the ossification test report coupled with the fact that FIR itself is delayed by about four days, and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
20. Let the applicant- Krishna Kushwaha @ Visvajeet involved in aforementioned case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
(i) The applicant shall not tamper with evidence.
(ii) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C./351 B.N.S.S. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
21. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
22. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 23.4.2025
Vikas
(Justice Krishan Pahal)
