Allowed

Abhishek Singh Thakur v. State of U.P. and 3 Others

Allahabad HC4 Aug 2023BAIL/29588/2023

Case brief

AI extract

What is this about?

The Single Judge allowed a bail application filed by a chargesheeted accused in a POCSO and related offences case. Relying on marriage to the prosecutrix, consent arguments, lack of FIR against the applicant, clean antecedents, and incarceration period, the court found no circumstances necessitating custodial arrest.

What did the court decide?

Released on bail on personal bond and two sureties subject to conditions: no tampering with evidence, attending court, lawful conduct, and not misusing liberty.

Abhishek Singh Thakur Vs State of U.P. and 3… — Child Sexual Offences (POCSO) | Allahabad HC (2023)

¶1

Neutral Citation No. - 2023:AHC:156749

¶2

Court No. - 65

¶3

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29588 of 2023

¶4

Applicant :- Abhishek Singh Thakur Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ram Neta Singh Counsel for Opposite Party :- G.A.,Ram Jatan Yadav

¶5

Hon'ble Rajeev Misra,J.

¶6

Heard Mr. Ramesh Kumar Singh Advocate holding brief of Mr. Ram Neta Singh, the learned counsel for applicant, the learned A.G.A. for State and Mr. R. P. Verma Advocate holding brief of Mr. Ram Jatan Yadav, the learned counsel representing first informant/opposite party-4.

¶7

Perused the record.

¶8

Instant application for bail has been filed by applicantAbhishek Singh Thakur seeking his enlargement on bail in Case Crime No. 52 of 2023 under Sections 363, 366, 376 I.P.C., Sections 3/4, POCSO Act, and Section 3 (2) 5 of SC/ST (Preventon of Atrocities) Act 1989, Police StationGanjdundwara, District-Kasganj, during the pendency of trial.

¶9

Record shows that in respect of an incident which is alleged to have been occurred on 26.02.2023, a prompt F.I.R. dated 26.02.2023 was lodged by first informant Dataram (Father of the prosecutrix) and was registered as Case Crime No. 52 of 2023 under Sections 363, 366, 376 I.P.C., Sections 3/4, POCSO Act, and Section 3 (2) 5 of SC/ST (Preventon of Atrocities) Act 1989, Police Station-Ganjdundwara, District-Kasganj. In the aforesaid F.I.R. an unknown person has been arranged as an accused.

¶10

The gravamen of the allegations made in the F.I.R. is to the effect that on 26.03.2023 at around 13.30 PM. the daughter of first informant namely X, who is aged about 16 years went out to the market but she did not return home.Thereafter, attempt was made to search her whereabouts but with no result. The F.I.R. further records that an unknown boy from villageAlhazpur is alleged to have enticed away the daughter of first informant i.e. prosecutrix.

¶11

Learned counsel for applicant contends that applicant is innocent. He is not named in the F.I.R. However, he is a chargesheeted accused as the charge sheet has been submitted against applicant on 20.04.2023 whereby applicant has been chargesheeted under Sections 363, 366, 376 I.P.C., Sections 3/4, POCSO Act, and Section 3 (2) 5 of SC/ST (Preventon of Atrocities) Act 1989. With reference to the statement of the prosecutrix as recorded under Section 161, before the Doctor and under Section 164 Cr.P.C., he submits that prosecutrix is a willing and consenting party. The prosecutrix herself came to the applicant and joined him. As such, no offence under Sections 363 and 366 I.P.C. can be said to have been committed by applicant. Referring to the statements of the prosecutrix as noted above, the learned counsel for applicant further contends that the prosecutrix has solemnized marriage with applicant. It is on account of above that the prosecutrix and the applicant developed cohabitation and were living together as husband and wife. As such, no offence under Sections 376 I.P.C., Sections 3/4, POCSO Act, can be said to have been committed by applicant either. The date of birth of prosecutrix as recorded in School record is 01.01.2007. As such, prosecutrix was aged about 16 years, 1 month and 25 days on the date of occurrence. Even though the prosecutrix was below 18 years, on the date of marriage of applicant with the prosecutrix but the marriage of

¶12

prosecutrix with the applicant should be voidable at the instanae of the proscutrix and not void unvoidale in view of the provisions contained in Section 11 (2) of the Hindu Marriage Act. However, no proceedings have been initiated for declaring the aforesaid marriage as void. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted. Therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 28.02.2023. As such, he has undergone more than five months of incarceration. In case the applicant is not enlarged on bail a happy family shall stand broken. On the cumulative strength of above, the learned counsel for applicant submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

¶13

Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since the applicant is a charge-sheet accused, therefore he does not deserve any indulgence by this Court. The prosecutrix is a young girl aged about 16 years 1 month and 25 days on the date of occurrence as such she was below 18 years on the date of occurrence. Consequently, her consent is wholly immaterial. As a result the provisions of section 376 I.P.C. and Section 3/4 POCSO Act are squarely attracted against applicant. However, they could not dislodged the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this

¶14

stage.

¶15

Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that applicant is not named in the F.I.R, prosecutrix is a willing and consenting party, the prosecutrix herself came to the applicant and joined him, as such, no offence under Sections 363 and 366 I.P.C. can be said to have been committed by applicant, prosecutrix has solemnized marriage with applicant and they are living together as husband and wife, as such, no offence under Sections 376 I.P.C., Sections 3/4, POCSO Act, can be said to have been committed by applicant, police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised, in spite of above, no such circumstance could be pointed out by the learned A.G.A. from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgement of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5) , the clean antecedents of applicant, the period of incarceration undergone by applicant and the clean antecedents of applicant but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

¶16

Accordingly, present application for bail is allowed .

¶17

Let the applicant- Abhishek Singh Thakur involved in aforesaid case crime number be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the

¶18

following conditions which are being imposed in the interest of justice:-

¶19

(i) Applicant will not tamper with prosecution evidence.

¶20

(ii) 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.

¶21

(iii) Applicant will not indulge in any unlawful activities.

¶22

(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

¶23

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 of applicant and send him to prison

¶24

Order Date :- 4.8.2023 YK

¶25

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

Abhishek Singh Thakur v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Abhishek Singh Thakur 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

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Ranjeet Vs State of U.P. and 3 Others

Shatrughan @ Ramsahodar Vs State of U.P.

Shanker Yadav Vs State of U.P.

Hasmuddin Vs State of U.P.

Chhabila Yadav Vs State of U.P.

Smt. Geeta Vs State of U.P. and Another