Vikas Kumar Gupta Vs State of U.P. and 3 Others

Court No. - 77

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1331 of 2023

Applicant :- Vikas Kumar Gupta Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rahul Singh Counsel for Opposite Party :- G.A.,Anil Kumar

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Mr. Rahul Singh, learned counsel for the applicant, Mr. Anil Kumar, learned counsel for the opposite party no.2, Mr. Pankaj Srivastava, learned A.G.A. for the State and perused the record of the present bail application.

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The present bail application has been filed by the applicant– Vikas Kumar Gupta with a prayer to enlarge him on bail in Case Crime No.383 of 2022, under Sections 363, 366, 376(2) of I.P.C. and Section 6 of POCSO Act and Section 3(2)5A, 3(2)5 of SC/ST Act, Police Station-Sumerpur, District-Hamirpur, during pendency of trial.

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As per the prosecution case, an FIR was lodged under Sections 363, 366 IPC by mother of the victim against the applicant and two others through an application U/s 156(3) Cr.P.C. with the allegations that her 16 years old daughter was enticed away by the applicant.

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Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated in the present case due to malicious intention just to harass the applicant. He further submits that after recovery of the victim, her statements under Sections 161 and 164 Cr.P.C. were recorded wherein she has not stated anything negative against the applicant. He further submits that there is nothing in the FIR as well as statements under Sections 161 and 164 Cr.P.C. to show that offence under Section SC/ST Act is made out against the applicant. He further submits that in the FIR itself, her date of birth has been mentioned as 16 years old. As per her date of birth, which is 10.08.2006, she is nearly 16 years old at the time of incident. He further submits that from the statements of the victim under Sections 161 and 164 Cr.P.C., the relations between the applicant and victim is consensual. She herself refused to get her medically examined, which also proves the consensual relations between the two. He further submits that POCSO Act means to protect children from sexual exploitation, not to criminalize consensual romantic relationship as has been held in

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the case of Ajay Kumar vs. State Govt. of NCT of Delhi and another . It is next argued that the applicant has no criminal history and there is no possibility of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and the applicant is languishing in jail since 25.09.2022. Accordingly, he requests for bail.

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Per contra, learned A.G.A. as well as learned counsel for the opposite party no.2 has opposed the bail prayer of the applicant by contending that as per her date of birth, the victim is minor at the time of incident. However, they could not dispute the fact that the relations between the applicant and victim is consensual.

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Considering the nature of the offence, material/evidence brought on record, complicity of the accused, severity of punishment, the submissions made by the learned counsel for the parties, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

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Let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-

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(i) The applicants shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(ii) The applicants shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(iii) In case, the applicants misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(iv) The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section

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313 Cr.P.C. If in the opinion of the trial court absence of the applicants are deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.

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Order Date :- 11.1.2023 Jitendra/-

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Digitally signed by :- JITENDRA KUMAR YADAV High Court of Judicature at Allahabad

Vikas Kumar Gupta v. State of U.P. and 3 Others

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Vikas Kumar Gupta v. State of U.P. and 3 Others

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