Single judge granted bail to an applicant accused under IPC and POCSO, noting the prosecutrix is likely an adult and she made an exculpatory statement recording a prior relationship and marriage. Conditions imposed include appearance and non-harassment.
Applicant released on bail executing personal bond and furnishing two sureties under specified conditions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11043 of 2018
Applicant :- Manoj Nishad Opposite Party :- State Of U.P. Counsel for Applicant :- Akhilesh Kumar,Chandra Bhan Counsel for Opposite Party :- G.A.,Ram Krishna Mishra
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Manoj Nishad, in Case Crime No.0002 of 2018, under Sections 363, 366, 506, 376 IPC, and Section 3/4 POCSO Act, Police Station, Atrauliya, District Azamgarh.
Heard Sri Umesh Chandra Tiwari, holding brief of Sri Chandra Bhan, learned counsel for the applicant and Sri Sudheer Kumar Pathak, learned AGA along with Sri Abhinav Tripathi, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that going by the medico legal estimation of the prosecutrix's age done by the Chief Medical Officer, Azamgarh, on the basis of an ossification test dated 4.1.2018, the age of the prosecutrix has been opined to be about 18 years. The report of the Chief Medical Officer, Azamgarh regarding the prosecutrix's age is a part of the case diary and has been produced before the Court during hearing, which has been examined by the Court with the assistance of the learned counsel appearing for both sides. The submission of learned counsel for the applicant is that from a perusal of the said report, the prosecutrix is clearly a major and the provisions of the POCSO Act are not attracted. Learned counsel for the applicant has invited the attention of the Court to the statement of the prosecutrix dated 16.1.2018, recorded before the Magistrate under Section 164 Cr.P.C.., where she has
spoken exculpatory in unqualified terms and said that she knows the applicant for the past one year; that the applicant and the prosecutrix like each other; that on 29.12.2017 in the evening hours at about 10 minutes past 9, she left her house of her free will and along with the applicant went to Chandigarh; that the two have married and that they are living together of their free will as man and wife. The submission of the learned counsel for the applicant is that going by the aforesaid statement of the prosecutrix, no case to detain the applicant pending trial is made out.
Learned AGA has opposed the prayer for bail.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegations, the severity of punishment, and, in particular, the fact that the prosecutrix is prima facie a major and the statement under Section 164 Cr.P.C., is exculpatory, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
The bail application, accordingly, stands allowed.
Let the applicant Manoj Nishad , in Case Crime No.0002 of 2018, under Sections 363, 366, 506, 376 IPC, and Section 3/4 POCSO Act, Police Station, Atrauliya, District Azamgarh be released on bail on executing his personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial
court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
v) The applicant 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 such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court.
Order Date :- 5.12.2018 NSC
3 issues framed by the court
Whether bail should be granted when the prosecutrix is prima facie a major despite POCSO charges.
Whether an exculpatory statement by the prosecutrix supports granting bail.
What conditions must be imposed upon release on bail in such cases.
3 provisions across 3 enactments
Manoj Nishad
State Of U.P.
Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
