Lavkush Vs State of U.P. and Another

Neutral Citation No. - 2023:AHC:157273

Court No. - 70

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30736 of 2021

Applicant :- Lavkush Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajeev Kumar Singh Parmar,Ghanshyam Das Mishra,Hans Nath Pandey,Rohit Dwivedi,Sanjay Kumar Srivastav Counsel for Opposite Party :- G.A.

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Hon'ble Sameer Jain,J.

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None appeared on behalf of the informant, however, learned AGA for the State is present.

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Heard Sri Rohit Dwivedi, learned counsel for the applicant and Dr. S.B. Maurya, learned AGA-I for the State-respondent.

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The instant application has been filed seeking release of the applicant on bail in Case Crime No. 216 of 2021, under Sections 363, 366, 376, IPC & 3/4 POCSO Act, Police Station- Malpura, District- Agra, during pendency of the trial in the court below.

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FIR of the present case was lodged against the applicant under Section 363 IPC and according to the FIR, applicant enticed away the minor daughter of the informant aged about 15 years.

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Learned counsel for the applicant submitted that entire allegation of enticement made against the applicant is totally false and baseless and actually victim i.e. prosecutrix of the case had gone along with the applicant according to her own wish and this fact is evident from her both the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C.

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He further submitted that appearance-wise prosecutrix appears to be a girl aged about 17-18 years and applicant is also 22 years' old boy and both loved each-other.

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He further submitted that from the statements of the victim recorded during investigation consent of the victim is quite apparent although, as per the school record, age of the victim was 13 years but as per the informant she was 15 years' old at the time

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of incident, therefore, it appears that he did not disclose her correct date of birth in her school record. He further submitted that during investigation, ossification test of the victim was not conducted.

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He further submitted that applicant is not having any criminal history and he is in jail since May, 2021 i.e. for more than two years and till date, not even a single prosecution witness could be examined, however, charges have been framed on 05.08.2021 i.e. about two years before, therefore, it appears that trial of the case is moving with languid pace and there is no hope that in near future trial of the case could be concluded.

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Per contra, learned AGA opposed the prayer for bail and submitted that prosecutrix i.e. victim of the case is hardly 13 years' of age, therefore, her consent is immaterial but he fairly conceded that prosecutrix in her both the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. did not state anything against the applicant and applicant is in jail for more than two years and till date not even a single prosecution witness could be examined although, charges have been framed on 05.08.2021.

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I have heard learned counsel for the parties and perused the record of the case.

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Although, from the school record, it reflects that victim at the time of incident was 13 years' old but her ossification test was not conducted during investigation and in the FIR informant disclosed her age as 15 years, therefore, merely on the basis of school record, it cannot be said at this stage that at the time of incident victim was 13 years' old.

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Further, from the perusal of the statements of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C., it appears that victim did not make any allegation against the applicant and stated that she according to her own wish had gone along with the applicant and she loved the applicant.

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Further, applicant is not having any criminal history and he is in jail since May, 2022 i.e. for more than two years and till date, not even a single prosecution witness could be examined including prosecutrix of the case although, charges have been framed on 05.08.2021 i.e. about two years before, therefore, I find force in the argument advanced by learned counsel for the applicant that trial of the case is moving with languid pace and from the speed of the trial, it appears that there is violation of fundamental rights of the applicant provided under Section 21 of the Constitution of

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India.

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Therefore, considering the facts and circumstances of the case discussed above, in my view applicant is entitled to be released on bail.

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Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed .

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Let the applicant- Lavkush be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.

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(ii) 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 or any police officer or tamper with the evidence.

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(iii) The applicant shall not indulge in any criminal and anti-social activity.

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

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It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.

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Order Date :- 3.8.2023 KK Patel

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Digitally signed by :- KRISHN KANT PATEL High Court of Judicature at Allahabad

Lavkush v. State of U.P. and Another

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Lavkush v. State of U.P. and Another

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