Allowed

Sani Diwakar v. State of U.P. and 3 Others

Allahabad HC16 Jul 2022BAIL/16589/2022

Case brief

AI extract

What is this about?

Court allowed bail application of Sani Diwakar charged under IPC and POCSO statutes. Judge held that medical report indicated victim might be 17 (major) contrary to FIR alleging 16 years, and victim herself admitted consensual intimacy without allegations of force. No criminal history for applicant found.

What did the court decide?

Applicant released on bail with personal bond and two sureties under specified conditions not to tamper with evidence or influence witnesses.

Sani Diwakar Vs State of U.P. and 3 Others — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 70

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16589 of 2022

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Applicant :- Sani Diwakar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Satyaveer Singh Counsel for Opposite Party :- G.A.

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Hon'ble Ajay Bhanot,J.

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Counter affidavit filed by the State is taken in the record.

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Shri Nafees Ahmad, learned AGA for the State contends that the police authorities in compliance of the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served the bail application upon the informant/victim as well as upon the CWC.

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By means of this bail application the applicant has prayed to be enlarged on bail in Case Crime No.785 of 2021 at Police Station-Tajganj, DistrictAgra under Sections 363, 366, 376 IPC and Section 3/4 of POCSO Act. The applicant is in jail since 10.12.2021.

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The bail application of the applicant was rejected by learned Additional District and Sessions Judge, Court No.27/learned Special Judge (POCSO Act,

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Exclusive Court)/Agra on 16.03.2022.

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Shri Satyaveer Singh, learned counsel for the applicant contends that the applicant has been falsely implicated in the instant case. The F.I.R. incorrectly depicts the age of the victim as 16 years. The medical report opines that the age of the victim is about 17 years. The victim is in fact a major. Her age entered in her date of birth certificate is 21 years. Learned counsel for the applicant made two submissions in regard to the aforesaid medical report. Firstly, the range of error in determining the age is about two years and the same should be read in favour of the applicant at this stage. Secondly, the medical report is flawed. The latest medical protocol and relevant scientific criteria were excluded from consideration in the medical report. For example, size of the teeth, heredity, socioeconomic environment and dietary habits have not been factored in the said medical report. These have a bearing on human growth and determination of age.

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Shri Satyaveer Singh, learned counsel for the applicant further contends that the applicant and the victim were intimate. Their consensual relationship was opposed by the family members of the victim. The F.I.R. is a result of such opposition.

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The victim in her statement under Section 164 Cr.P.C. has admitted to intimacy with the applicant. She has further asserted that she accompanied him to various places of her own volition and against the wishes of her parents. She has categorically asserted that the applicant did not rape her. Allegations of abduction, rape or forceful assault have not been made against the applicant by the victim in her statements. Medical evidence which corroborates the allegation of rape or forceful assault has not been produced by the prosecution. False allegations under the POCSO Act have been made only to ensure the indefinite imprisonment of the applicant. Learned counsel for the applicant contends that the applicant does not have any criminal history apart from the instant case.

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Shri Nafees Ahmad, learned AGA for the State could not satisfactorily dispute the aforesaid submissions from the record. Learned AGA does not dispute the fact that the applicant does not have any criminal history apart from this case.

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I see merit in the submissions of learned counsel for the applicant and accordingly hold that the applicant is entitled to be enlarged on bail.

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In the light of the preceding discussion and without making any observations on the merits of the case,

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the bail application is allowed.

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Let the applicant-Sani Diwakar be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-

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(i) The applicant will not tamper with the evidence during the trial.

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(ii) The applicant will not influence any witness.

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(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

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(iv) The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.

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In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.

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Order Date :- 16.7.2022 Ashish Tripathi

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Digitally signed by ASHISH NAYAN TRIPATHI Date: 2022.07.16 14:53:17 IST Reason: Location: High Court of Judicature at Allahabad

Sani Diwakar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Sani Diwakar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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