Applicant sought bail in trial case for alleged offenses under IPC and POCSO Act. Court noted victim was over 12 years, no rape allegation, and relied on Apex Court dictum on larger mandate of Article 21 to grant bail on personal bond and sureties.
Applicant released on bail by executing personal bond and two sureties under specified conditions.
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Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14104 of 2021
Applicant :- Vinod Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ramesh Singh Kushwaha,Javed Khan Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Joshi,J.
Heard Sri Javed Khan, learned counsel for the applicant, learned AGA for the State and perused the record.
This bail application has been filed on behalf of the applicant seeking bail in Case Crime No. 329 of 2020, under Sections 363, 366, 376 IPC and 5(m)/6 POCSO Act, Police Station Karimuddinpur, District Ghazipur, during pendency of trial.
It is contended by learned counsel for the applicant that the applicant is innocent and he has falsely been implicated in the present case. The first information report was lodged by the mother of the victim againt unknown persons with the allegation that her daughter left her home on 20.12.2020. The applicant was not named in the first information report. Subsequently, the police recovered the victim on 13.01.2021 from Ghazipur Bus Stand and produced her before the Magistrate for recording her statement under Section 164 Cr.P.C. In her statement recorded under 164 Cr.P.C. she specifically stated that she went with the applicant on her own will and married him in the temple of Ahemadabad. There is no allegation of any sexual assault or rape against the applicant and only this much is admitted that she lived with the applicant as a husband and wife. It is next contended by learned counsel for the applicant that as per the report of the radiologist, age of the girl is 15 years and she is minor. The offence under Section 5(m)/6 POCSO Act is not attracted in the present case as it provides that whoever commits aggravated penetrative sexual assault on a child below 12 years and in the present case, age of the girl is 15 years. It is next contended by learned counsel for the applicant that it is apparent from the statement of the victim recorded under Section 164 Cr.P.C. as well as from the contents of the first information report, there is no allegation of any rape under Section 376 IPC. It is next contended that applicant is a student having 18 year of age as stated in paragraph 18 of the affidavit filed in support of the bail application. It is lastly contended that the applicant has no other criminal history. He is in jail since 13.01.2021 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial. There is no prospect of trial of the present case being concluded in near future due to heavy dockets.
Learned AGA appearing for the State vehemently opposed the prayer for bail but could not dispute the aforesaid facts and legal submissions as argued by the learned counsel for the applicant.
Having heard submissions of learned counsel of both sides, considering nature of accusation, severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction in support of the charge, reformative theory of punishment, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, (2018) 3 SCC 22 , without expressing any view on the merits of the case, I find it to be a case of bail.
Let the applicant- Vinod Kumar involved in the aforesaid crime be released on bail, on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned, with the following conditions:
The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.
In case of breach of of any of the above conditions, it shall be a ground for cancellation of bail.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 22.10.2021
Noman
2 issues framed by the court
Whether the accused should be released on bail considering the nature of accusation and prima facie satisfaction of charges.
Whether the applicability of POCSO Act and IPC charges warrants denial of bail given age of victim.
Colour shows how this judgement treated each authority
Dataram Singh v. State of U.P.Referred¶9
Dataram Singh v. State of U.P. and another, (2018) 3 SCC 22 · Who else cites this
2 provisions across 2 enactments
Vinod Kumar
State of U.P.
Rajiv Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
