Court allowed bail to Mohit Nigam in a case involving abduction and sexual offences, noting a prima facie major status of the prosecutrix from medical reports and her exculpatory statement.
Released on bail by executing personal bond with two sureties; conditions include no tampering with evidence, no threat to witnesses, and attending trial court.
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Court No. - 53 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43495 of 2018 Applicant :- Mohit Nigam Opposite Party :- State Of U.P. Counsel for Applicant :- Dhirendra Kumar Srivastava,Virendra Singh Tomar Counsel for Opposite Party :- G.A.,Ramesh Kumar Pandey
Hon'ble J.J. Munir,J.
In compliance with this Court's order dated 13.12.2018, the report of the medical board has been submitted by the Chief Medical Officer, Ghaziabad through the Chief Judicial Magistrate, Ghaziabad in a sealed cover. The sealed cover has been opened under orders of this Court. The report is exhibited and made part of it.
This is a bail application on behalf of the applicant Mohit Nigam in connection with Case Crime No. 1121 of 2018 under Section 363, 366, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Murad Nagar, District Ghaziabad.
Heard Sri Rajiv Sisodia, Advocate holding brief of Sri Dhirendra Srivastava, learned counsel for the applicant and Sri Ramesh Kumar Pandey, learned counsel appearing on behalf of the complainant and Sri Akhilesh Kumar Mishra, learned AGA along with Sri Awaneesh Shukla, learned counsel appearing on behalf of the State.
The submission of learned counsel for the applicant is that a perusal of the medico legal report dated 17.12.2018 submitted by the Chief Medical Officer, Ghaziabad shows that the medical board constituted under the orders of this Court, has opined the prosecutrix, on the basis of an ossification test, to be aged about 17 years. It is submitted that giving the usual allowance of two years to the benefit of the accused, or even one, the prosecutrix reckons to be a major. Therefore, the provisions of POCSO Act would not at all be attracted. Learned counsel for the applicant has invited the attention of the Court to the statement of the prosecutrix under Section 164 Cr.P.C., where she has spoken exculpatory to say, that she went to Meerut of her free will, and stayed at the house of one Gul, a friend of the applicant, Mohit. She has said that she told Mohit that she wants to go home whereupon the two of them came back to Mansoori on 27.07.2018. The two have not married but had carnal relations. It is specifically said that the applicant has never abducted the prosecutrix. She has further said that she wants to go back to the applicant. The submission of learned counsel for the applicant is that looking to the aforesaid statement of the
prosecutrix, no case against the applicant is made out.
Learned counsel appearing on behalf of the applicant and the learned AGA have vehemently opposed the prayer for bail.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, in particular, the fact that prima facie, the prosecutrix is a major and the statement under Section 164 Cr.PC. is exculpatory, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Mohit Nigam involved in Case Crime No. 1121 of 2018 under Section 363, 366, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Murad Nagar, District Ghaziabad be released on bail on executing a 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 :- 21.12.2018
Deepak
2 issues framed by the court
Whether bail should be granted where the prosecutrix's statement suggests a major age despite medical ossification test reports.
Whether the gravity of offences under IPC 363, 366, 376 and POCSO bars the release of the applicant on bail.
6 provisions across 5 enactments
Mohit Nigam
J.J. Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
J.J. Munir
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