Uttarakhand High Court
CRLA/389/2022 on 7 August, 2023
Office Notes, reports,
orders or proceedings or
SL.
Date directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
07.08.2023 CRLA No. 389 of 2022
Hon'ble Sharad Kumar Sharma, J.
Mr. B.D. Pandey, Advocate, along
with Mr. Kaushal Pandey, Advocate, for
the appellant.
Mr. V.K. Gemini, Deputy Advocate
General, for the State.
An FIR, being FIR No. 129 of 2018
dated 26.04.2018 was registered by the
complainant, for the offences under
Sections 323, 354, 504 and 506 of IPC in
relation to the incident, which has
chanced on 26.04.2018, when at the
relevant point of time admittedly
according to her, she was studying in
M.B.P.G. College, where the allegation of
assault was made. She had contended
that the applicant wanted to duress her to
marry and in an event of her denial, he
used to threaten her, that since he is
having a mastery over black magic he
would be forcing her to enter into a
marriage, lest failing which he will throw
acid upon her.
She further complained that for
last 8 years the appellant has been
threatening the victim ever since she was
staying in Bareilly but despite of the said
allegation levelled in the FIR no offence
under the POCSO Act was levelled as
against him in the FIR.
It was at this stage when the
Chargesheet was submitted, the
Investigating Officer has introduced the
offence under Section 5/6 of the POCSO
Act and accordingly, based on the
Chargesheet submitted as by the
Investigating Officer, a charge in relation
to the offence under Section 5/6 of
POCSO Act, was also made as part of the
charge framed against the present
applicant.
During the course of trial, the
appellant was released on bail on
05.06.2018 and remained so till
07.10.2018. After the judgment of
conviction, presently he is languishing in
jail and he submits that none of the
allegations levelled in the FIR could be
said to have been made out because the
story, as narrated by the victim herself,
with regard to the incident which has
chanced about 8 years was not a subject
matter of trial for the commission of
offence under Section 5/6 of the POCSO
Act and particularly, because that could
not have been made out as the subject
matter of trial, because that was an
offence in relation to when she was living
in Bareilly.
The principal allegation which is
said to have been levelled against the
present appellant is in relation to the fact
when she was studying in M.B.P.G.
College and the said incident has chanced
on 26.04.2018.
The Bail Application has been
opposed by the learned Government
Advocate, on the ground that though the
appellant was initially arrested on
05.05.2018 but later on he was bailed out
after couple of months and later on after
establishment of the commission of
offence under Section 5/6 of the POCSO,
for which he has been imposed with a
sentence of 10 years of rigorous
imprisonment, he had been further
sentenced to undergo the sentences with
regard to other offences; for example,
Section 323 for 1 year Section 506 for two
years and Section 354 for 8 years, and
354D for 2 years.
The appellant is languishing in jail
after the judgment of conviction since
07.09.2022. Looking to the fact, that at
the time when the offence was initiated
about 8 years back, when she was a minor
there was no such allegation ever levelled
against the present appellant by the
complainant, by raising any complaint to
her parents or registering the same
before the competent authorities.
This Court is of the view, that the
prosecution case and that of the
complainant and particularly the fact
based on the statement as made in the
FIR and that of the statement recorded by
the victim under Section 164 of CrPC,
prosecution of the appellant for the
offence under Section 5/6 of the POCSO
Act could not be made out against him,
for the reason being that if the offence in
the FIR are taken into consideration that
itself has chanced when the complainant
has already attained the age of majority.
Owing to the aforesaid and
looking to the facts and circumstances of
the case, since on the date of commission
of offence which was the subject matter
of the FIR, the appellant was already
major, no offence under Section 5/6 of
the POCSO could have been made out
against the present appellant, which could
have been made a subject matter of trial
of the Sessions Trial No. 31 of 2006, State
Vs. Naveeen Chandra.
Owing to the aforesaid, since the
Court has travelled beyond the scope of
the FIR itself by framing a charge in
relation to the offence under Section 5/6
of the POCSO Act, which was not even a
subject matter of allegation in the FIR, the
appellant is entitled to be released on
bail.
Accordingly, the Bail Application
would stand allowed.
The applicant is directed to be
released on bail, subject to executing his
personal bond and furnishing of two
sureties, each in the like amount, to the
satisfaction of the Court concerned.
(Sharad Kumar Sharma, J.)
07.08.2023
Mahinder/
