Javed @ Raja vs State Of Chhattisgarh
2022 Latest Caselaw 7006 Chatt

                                                                         NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR
                            MCRC No. 8519 of 2022

      Javed @ Raja S/o Jhahangir Ansari Aged About 29 Years R/o Village
      Ward No. 34 Main Road Godri Para, P. S. And Tahsil Chirmiri, District :
      Koriya (Baikunthpur), Chhattisgarh.
                                                                 ----Applicant

                                    Versus

     State Of Chhattisgarh Through S. H. O. P. S. Chirmiri, District : Koriya
     (Baikunthpur), Chhattisgarh.
                                                           ----Non-applicant
For Applicant      Smt. Indira Tripathi, Advocate.
For State          Shri G.P. Kurre, P.L.

                Hon'ble Shri Justice Sachin Singh Rajput
                            Order on Board
22/11/2022

   1. This is the First Bail Application filed under Section 439 of Code of
      Criminal Procedure for grant of bail in connection with Crime
      No.447/2022 registered at Police Station Chirmiri, District Koriya (C.G.)
      for the offence under Sections 376 (2)(N) of IPC and Section 6 of the
      POCSO Act.

   2. Facts

of the case in brief is that the applicant has developed the sexual relation with the victim since 2018 and living as husband and wife, due to sexual relationship she carrying pregnancy and subsequently with the help of applicant she miscarriage the pregnancy and thereafter the applicant return back to home and prosecutrix also return back to home and force to the applicant to pay sum of Rs.2 Lacs which has been transferred in the account of the victim as payment of loan amount thereafter she has lodged report with the aforesaid allegation.

3. Learned counsel for the applicant submits that report was lodged on 17/08/2022 alleging that the present applicant committed sexual intercourse with the victim from 19/11/2017 till date. According to her submission her date of birth is 04/10/1999 and even assuming that the first instance took place on 19/11/2017 the victim was major on that date. She submits that in fact there was some monetary transaction between the applicant and victim and for that purposes an agreement was also executed on 06/08/2022 and under the recital of that agreement Rs.2 Lacs was transferred in the account of victim on 16/08/2022 in order to avoid the payment of that amount on the very next day the false report was lodged against the present applicant, even assuming that there was a intercourse for the period starting from 19/11/2017 till the report is lodged, prima facie amounts to a consensual relationship. She relies upon the judgment of Supreme Court in the matter of Maheshwar Tigga vs. State of Jharkhand, (2020) 10 SCC 108, Pramod Suryabhan Pawar vs. State of Maharashtra & another, 2019 (9) SCC 608 to contain that the continuous and long relationship goes to show that the there was no coercion for misconception on the part of the applicant to obtain to consent. He is in jail since 17/08/2022, charge-sheet has been filed and the trial is likely to take sometime. She further submits that the prosecutrix itself is doubtful with regard to date of birth and from the document appended with the charge-sheet the scholar register mentioned the date of birth is 04/10/1999 which fairly goes to show that the victim was major on the first alleged date of incident, even then the police in order to roped the present applicant in a serious crime charged under Section 6 of the POCSO Act, though there is no material to demonstrate the fact.

4. On the other hand, learned counsel for the respondent/State opposes the bail application. He further submits that the first incident alleged to have been committed on 19/11/2017 and according to the dakhil-kharij register her date of birth mentioned is 04/10/2000, however, the mark-sheet which is appended with the charge-sheet contains the date of birth 04/10/1999. This is to be ascertained on the stage of trial. He further submits that looking to the allegation against the present applicant he is not entitled for bail.

5. Vide order dated 14/11/2022 this Court directed to verify the agreement which was appended with the memo of application and monetary transaction between the applicant. On verification the State counsel submits that the agreement is genuine and monetary transaction has also taken place between the applicant and the victim.

6. Prosecutrix appeared on 18/10/2022 with her mother through video conferencing from the concerned DLSA and objected grant of bail and also submitted that she has life threats.

7. Heard learned counsel for the parties, considering their rival submissions.

8. Looking to the facts and circumstances of the case, submissions made by the counsel, the evidence collected so far, age of the prosecutrix and the prevailing facts and circumstances and also considering the judgment of the Supreme Court in the matter of Maheshwar Tigga (supra) I am inclined to allow this application. Accordingly, the bail application is allowed. It is directed that in the event of applicant executing a personal bond for a sum of Rs. 50,000/- with one surety to the satisfaction of the concerned Trial Court, he shall be released on bail on the following conditions:-

(i) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade his from disclosing such fact to the Court

(ii) he shall not act in any manner which will be prejudicial to fair and expeditious trial, and

(iii) he shall appear before the trial Court on each and every date given to his by the said Court till disposal of the trial.

(iv) he shall not involve himself in any offence of similar nature in future or else this order granting bail to the applicant shall automatically stand cancelled without further reference to the Court.

(v) he is restrained from meeting any of the prosecution witness till the conclusion of the trial, if any violation is found and it is reported to the trial Court, the trial Court would be at liberty to take a decision with regard to cancellation of the bail.

9. It is made clear that these observations are only for the purposes of deciding the bail application. The trial Court will decide the case on its own merits without being influenced by any observation made herein- above.

Sd/-

Sachin Singh Rajput Judge

Kamde