Criminal Misc. Bail Application regarding charges under IPC and POCSO Act. Court allowed bail noting prima facie evidence that prosecutrix is a major and allegation against co-accused only.
Applicant released on bail on personal bond with two sureties subject to standard conditions.
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Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43002 of 2018
Applicant :- Sunny @ Sunil Opposite Party :- State Of U.P. Counsel for Applicant :- Vikas Sharma,Chandra Shekhar Mishra,Garun Pal Singh
Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
An appearance has been filed on behalf of the complainant by Sri Sunder Singh. It is taken on record.
This is an application for bail on behalf of the applicant, Sunny @ Sunil in connection with Case Crime No. 65 of 2018, under Sections 376, 452, 506, 120-B I.P.C. and Section 3/4 POCSO Act, Police Station Teetro, District Saharanpur.
Heard Sri Vikas Sharma, learned counsel for the applicant, Sri Sunder Singh, who has put in appearance on behalf of the complainant and Sri Indrajeet Singh Yadav, learned A.G.A. appearing for the State.
The submission of the learned counsel for the applicant is that going by the medico legal estimation of the prosecutrix's age, evident from the report of the Chief Medical Officer dated 14.08.2018 based on an ossification test, she has been opined to be aged about 18 years. It is submitted that going by the said, the prosecutrix is clearly a major. It is further submitted that the prosecutrix being a major, the provisions of the POCSO Act would not be attracted. Learned counsel for the applicant has taken the Court through the statement of the prosecutrix under Section 164 Cr.P.C. which shows that the allegation of rape is against co-accused, Neeraj and there is no allegation of that kind against the applicant, who has been roped in only because moments before the occurrence, Neeraj arrived with the applicant and went away thereafter taking along the
prosecutrix's brother on his motorcycle.
Learned A.G.A. as well as Sri Sunder Singh, learned counsel for the complainant have vehemently opposed the prayer for bail.
Considering the facts and circumstances of the case, the nature of allegations, the gravity of the offence, the severity of punishment, the evidence appearing in the case, in particular, the fact that the prosecutrix is prima facie a major and the fact that the allegation of rape whatever, that is against the coaccused, Neeraj and not at all, against the applicant, Sunny @ Sunil, 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 Sunny @ Sunil involved in Case Crime No. 65 of 2018, under Sections 376, 452, 506, 120-B I.P.C. and Section 3/4 POCSO Act, Police Station Teetro, District Saharanpur 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 :- 13.12.2018 BKM/-
2 issues framed by the court
Whether the applicant is entitled to bail in cases under sections 376, 452, 506, 120-B IPC and POCSO Act given prima facie evidence of victim's majority.
Whether the applicant can be released on bail when the primary allegation of rape is against co-accused.
Sunny @ Sunil
Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
