Criminal Misc. Bail Application where the applicant sought release in a case under IPC and POCSO. The Court relied on a medical report estimating the prosecutrix as a major to allow bail, imposing standard conditions to prevent tampering and ensuring witness safety.
Released on bail on executing personal bond and furnishing two sureties each.
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Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40650 of 2018
Applicant :- Sunil Mishra Opposite Party :- State Of U.P. Counsel for Applicant :- Raj Narayan Singh Counsel for Opposite Party :- G.A.,Amit Kumar Singh
Hon'ble J.J. Munir,J.
In compliance with the orders of this Court dated 25.10.2018, the report of the Chief Medical Officer, Chitrakoot dated 15.11.2018 has been forwarded to this Court through the AGA (not routed through the Chief Judicial Magistrate). The report received in a sealed cover has been opened in the presence of the Court. The same has been perused and exhibited. It is made part of the record.
This is an application for bail on behalf of applicant-Sunil Misra, in Case Crime No. 396 of 2018, under Sections 363, 366, 376 IPC and section 4 Prevention of Children from Sexual Offence Act, 2012, Police Station Karvi, District Chitrakoot.
Heard Sri Raj Narayan Singh, learned counsel for the applicant, Sri D.P.S. Chauhan, learned AGA along with Sri Ashutosh Diljan, appearing on behalf of the State and Sri Amit Kumar Singh, learned counsel appearing for the complainant.
The report of the Chief Medical Officer dated 15.11.2018 which carries the opinion of the Medical Board constituted under the orders of this Court dated 25.10.2018 has estimated the age of the prosecutrix to be about 18 years.
It is submitted by learned counsel for the applicant that looking to the said medically estimated age, the prosecutrix is clearly a major, as such, the provisions of the POCSO Act would not be attracted. Learned counsel for the applicant has invited the attention of the Court to the statement of the prosecutrix recorded under section 164
Cr.P.C. dated 20.6.2018 where the prosecutrix has said that she had proceeded on 15.6.2018 to contract a marriage in Court with Sunil Misra but, on way, they were arrested by the police. No doubt, it is said in the report by the prosecutrix that she is 17 years six months and would marry Sunil Misra after attaining the age of majority, of which, according to her, she has short by six months, but going by the medico legal estimation of the prosecutrix's age with the permissible variation to the benefit of the accused, reckons her to be a major, as learned counsel for the applicant submits.
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 allegation, the severity of punishment, the evidence appearing in the case, in particular, the fact that the medico legal estimation of age shows the prosecutrix to be about 18 years 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, Sunil Misra, in Case Crime No. 396 of 2018, under Sections 363, 366, 376 IPC and section 4 Protection of Children from Sexual Offence Act, 2012, Police Station Karvi, District Chitrakoot 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 :- 20.11.2018 Puspendra
2 issues framed by the court
Whether the applicant is eligible for bail in a case involving alleged sexual offences where the prosecutrix is medically estimated to be a major.
Whether the relevant provisions of the POCSO Act are attracted given the medicolegal age estimation.
2 provisions across 2 enactments
Sunil Mishra
J.J. Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
