Allowed

Durvijay Chauhan @ Vijay Chauhan v. State of U.P. and 3 Others

Allahabad HC5 Jul 2023BAIL/25409/2023

Case brief

AI extract

What is this about?

The High Court granted anticipatory bail to the applicant in a POCO Act case alleging enticement of a minor. The court found the case to be one of elopement based on evidence showing the victim lived with the applicant voluntarily, considering her age opinion and lack of resistance. Bail was granted with standard conditions to ensure appearance and prevent tampering.

What did the court decide?

Applicant released on personal bond and two sureties on conditions of not tampering with evidence, appearing in court, and not delaying proceedings.

Durvijay Chauhan @ Vijay Chauhan Vs State of… — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:132037

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Court No. - 69

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25409 of 2023

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Applicant :- Durvijay Chauhan @ Vijay Chauhan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Lal Behari Yadav Counsel for Opposite Party :- G.A.,Brij Bhushan Prasad Shrivastava

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Hon'ble Samit Gopal,J.

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Heard Sri Lal Behari Yadav, learned counsel for the applicant, Sri Brij Bhushan Prasad Shrivastava, learned counsel for the first informant and Sri J.P. Tripathi, learned counsel for the State and perused the material on record.

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This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Durvijay Chauhan @ Vijay Chauhan , seeking enlargement on bail during trial in connection with Session Trial No. 210 of 2023 arising out of Case Crime No. 56 of 2022, under Sections 363, 366, 376 I.P.C. and Section 5(J) (ii) / 6 POCSO Act, registered at Police Station Suraauli, District Deoria.

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The first information report of the present case was lodged on 20.12.2022 by Mahant Chauhan against the applicant and 03 other persons alleging therein that his daughter aged about 14 years has been enticed away by accused persons on 17.12.2022. She has been searched a lot but could not be traced.

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Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the victim went away with the applicant on 17.12.2022 after which she was recovered on 13.03.2023 and in between she lived with him out of her own sweet-will. It is argued that the victim in her statement recorded u/s 161 Cr.P.C. has stated that she went from the village with the applicant on a motorcycle to Deoria and then on a bus to Gorakhpur and then again on a bus to Delhi. It is argued that during the period in between the victim did not resist her travel and being in company of the applicant in spite of the fact that she had ample opportunity to resist the same. It is argued that even the victim in her statement recorded u/s 164 Cr.P.C. has stated that she went with the applicant out of her own sweet-will and wants to marry him. She has stated that the applicant is already married and is having two children. Learned counsel has further argued that the victim was opined to be about 18 years of age by the Chief Medical Officer, Deoria, the copy of the same is annexed at page 22 of the paper-book. It is argued that as such the victim is a major girl. She went with the applicant out of her own sweet-will and lived with him. It is argued that the present case is a case of elopement. The applicant has no criminal history as stated in para 17 of the affidavit and is in jail since 15.03.2023.

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Per contra , learned counsel for the first informant opposed the prayer for bail. Learned counsel for the first informant submitted that as per the school certificate of class-8th the victim is aged about 16 years and as such is a minor. It is argued that since the victim is a minor her consent would be of no worth.

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Learned counsel for the State also opposed the prayer for bail.

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After having heard the learned counsel for the parties and perusing the record, it is evident that although the victim is stated to be of 16 years in her school certificate of class-8th but the Chief Medical Officer concerned has opined her to be about 18 years of age. The victim in her statement recorded u/s 161 Cr.P.C. and u/s 164 Cr.P.C. has stated of going away with the applicant, living with him for about three months and establishing physical relationship out of her own sweet-will. The present case appears to be a case of elopement.

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Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

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Let the applicant- Durvijay Chauhan @ Vijay Chauhan , 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 concerned with the following conditions which are being imposed in the interest of justice:-

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i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

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ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

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(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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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(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails 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 I.P.C.

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(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is 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 and the trial court may proceed against him under

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Section 229-A IPC.

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(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

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The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

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The bail application is allowed.

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Order Date :- 5.7.2023 AS Rathore

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(Samit Gopal,J.)

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Digitally signed by :- ABHISHEK SINGH RATHOR High Court of Judicature at Allahabad

Durvijay Chauhan @ Vijay Chauhan v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Durvijay Chauhan @ Vijay Chauhan v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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