Single judge allowed criminal bail application in a case involving alleged obscene photograph offences against a minor under POCSO and IT Act, citing Article 21 and absence of material to deny bail.
Applicant released on bail on furnishing personal bond and two sureties each in like amount.
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Court No. - 88
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16188 of 2023
Applicant :- Pradeep Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Pankaj Mishra Counsel for Opposite Party :- G.A.
Hon'ble Vikram D. Chauhan,J.
Learned AGA submits that notice with regard to present bail application has been served on the informant and instructions have been received and he has no objection in case the bail application is heard on merits.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
It is submitted by learned counsel for the applicant that as per prosecution case on 24.1.2023, applicant has entered into the house of informant and has taken obscene photograph of the daughter of informant and, thereafter, subsequently has viral the aforesaid photograph. It is submitted that although the girl was minor, however, the applicant was having affair with the aforesaid girl and, therefore, the photograph was taken, which is at page 34. It is submitted that in the statement under Section 164 Cr.P.C., victim has stated that applicant has taken photograph after keeping his hand near her neck. It is further submitted that victim has refused the medical examination. It is submitted by learned counsel for the applicant that photographs are not obscene and as such provision of IT Act is not attracted in the present case. It is further submitted that POCSO Act is also not attracted in the facts and circumstances of the case as there is no allegation of sexual assault nor there is medical report with regard to sexual assault. The applicant has no criminal history. Applicant is languishing in jail since 13.2.2023 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial.
Learned A.G.A. for the State opposed the prayer for bail but does not dispute factual matrix of the case.
Learned AGA has not brought any fact or circumstances to indicate criminal history or antecedents of the applicant which would disentitle the applicant for Bail.
It is not the case of the State that the applicant has not cooperated in the investigation or proceedings before the trial court.
The principle that Bail is a rule and Jail is an exception has been well recognised by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs Central Bureau of Investigation and another, 2022 (10) SCC 51 . Learned AGA has not shown any exceptional circumstances which would warrant denial of bail to the Applicant.
No material, facts or circumstances has been shown by learned AGA that the accused may tamper with the evidence or witnesses or the accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence.
It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State.
Learned AGA for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interests of the public or State.
Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant Pradeep involved in Case Crime No.18 of 2023, under Sections 452, 354 IPC, Section 7/8 POCSO Act and Section 67 IT Act, Police Station Shergarh, District Bareilly be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:-
5 . 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 him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 19.4.2023 D. Tamang
Digitally signed by :- DHIRENDRA TAMANG High Court of Judicature at Allahabad
2 issues framed by the court
Whether bail is maintainable in a case involving alleged possession and viralisation of obscene photographs of a minor under POCSO and IT Act.
Whether the applicant has established grounds for release on bail considering the nature of offences and lack of antecedents.
Colour shows how this judgement treated each authority
Satyendra Kumar Antil Vs Central Bureau of Investigation and anotherReferred¶11
Satyendra Kumar Antil Vs Central Bureau of Investigation and another, 2022 (10) SCC 51 · Who else cites this
6 provisions across 5 enactments
Pradeep
State Of U.P.
Vikram D. Chauhan
Dhirendra Tamang
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
