In bail application under criminal miscellaneous proceedings, the court rejected the plea of an accused charge-sheeted under IPC and POCSO Act. Despite the victim being a minor and the accused having clean antecedents, the court denied bail due to the gravity of the offence and complicity established during investigation.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2023:AHC:167677
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3476 of 2023
Applicant :- Kaleem Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ajay Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Ajay Kumar Srivastava, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
This application for bail has been filed by applicant Kaleem seeking his enlargement on bail in Case Crime No. 639 of 2022, under Section 452, 376, 506 IPC and Section 3/4 POCSO Act, Police Station- Massorie, District Ghaziabad during the pendency of trial.
At the very outset, learned A.G.A. submits that notice of present application for bail has been served upon first informant/opposite party-2. However, inspire of service of notice no one appears on present on behalf of first informant to oppose this application.
Record shows that in respect of an incident which is alleged to have occurred on 24.8.2022, a delayed F.I.R. dated 26.8.2022, was lodged by first informant- Riyasuddin, which was registered as Case Crime No. 639 of 2022, under Sections 452, 376, 506 IPC and Section 3/4 POCSO Act, Police Station- Massorie, District Ghaziabad. In the aforesaid F.I.R. applicant has been nominated as named accused.
The gravamen of the allegations made in the F.I.R. is to the effect that named accused repeatedly dislodged the modesty of applicant by extending threat to her.
After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms Chapter XII Cr.P.C. Thereafter, Investigating Officer recorded the statement of prosecutrix under Section 161
Cr.P.C., which is on record at page 24 of the paper book. The prosecutrix in her aforesaid statement has supported the F.I.R and has clearly and categorically implicated the applicant in the crime in question. Thereafter the prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the Doctor who medically examined her has rejoined her earlier statement under section 161 Cr.P.C. The Doctor who examined the prosecutrix, however, did not find any physical injury on her body at the time of medical examination so as to denote commission of sexual assault. With regard to the private part of prosecutrix, the Doctor opined as follows:
"Hymen Perineum- Old ruptured and healed"
Certain samples were taken from the body of prosecutrix for pathological examination. However, the supplementary medical report of the prosecutrix has not been brought on record. Ultimately, the statement of the prosecutrix was recorded under section 164 Cr.P.C. Prosecutrix in her aforesaid statement has rejoined her earlier statement under section 161 Cr.P.C as well as the statement before the Doctor. During course of investigation, Investigating Officer recovered the transfer certificate of the applicant. Copy of same is at page 59 of the paper book. As per said certificate, the date of birth of prosecutrix recorded in Madarsa record is 1.1.2007. The date of admission in the institution is recorded as 9.5.2013. The occurrence giving rise to presetn criminal proceedings occurred on 24.8.2022. As such, prosecutrix was aged about 15 years and 7 months on the date of occurrence. Investigating Officer also examined first informant and other witnesses under section 161 Cr.P.C. who have supported the F.I.R.
On the basis of above and other material collected by Investigating Officer, during course of investigation he came to the conclusion that complicity of applicant is established in the crime in question. He, accordingly submitted the charge sheet dated 26.9.2022, whereby applicant has been charge sheeted under sections 452, 376, 506 IPC and Section 3/4 POCSO Act.
Present application came up for orders on 17.7.2023 and this Court passe the following order:
"Heard learned counsel for the applicant as well as learned A.G.A.
Submission made by learned counsel for the applicant is that as per the allegations made in the FIR, the victim is minor(16 years) having date of birth 01.01.2006 and she is school drop out. She has only completed her class-IV
standard and she has leveled specific allegation of sexual excesses upon her by the applicant.
The Court is at loss to gather as to what is the age of the girl(victim) on the date of the incident.
Under the circumstances, The Chief Judicial Magistrate, Ghaziabad and the Chief Medical Officer, Ghaziabad is directed to conduct ossification test of the girl.
The Chief Medical Officer, Ghaziabad shall constitute team of three senior doctors who shall conduct the ossification test of the girl and give their candid report regarding approximate age of the girl on the date of incident i.e. on 24.08.2022 and remit the same in a sealed cover to the court. Let this exercise may be done within next 15 days from today.
Learned A.G.A. is required to communicate this order to the court concerned within the aforesaid period.
Put up this matter as fresh on 07.08.2023 before appropriate Court. "
In compliance of above order dated 17.7.2023, the prosecutrix was medically examined and her age determination report has been send to this Court in a sealed envelope. As per the medical opinion the age of the prosecutrix is opined as more than 13 years.
Learned counsel for applicant contends that though the applicant is a named and charge sheeted accused but he is innocent. Applicant has been falsely implicated in above mentioned case crime number. Present case is a case of malicious prosecution.
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 jail since 2.9.2022. As such, he has undergone more eleven months of incarceration. Police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized. However, upto this stage, no such incriminating circumstances has emerged necessitating the custodial arrest of applciant during the pendency of trial. It is thus urged 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 trial.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. He submits that as per school record, the prosecutrix is aged about 15 years whereas as per medical opinion, the prosecutrix is a young girl aged about 13 years. In any case the prosecutrix is
below 16 years of age. The prosecutrix has clearly supported the F.I.R. In her statement under section 161 Cr.P.C., before the Doctor as well as under section 164 Cr.P.C. the prosecutrix has remained categorical, clear and consistent. Referring to the medical report of the proesecutrix, learned A.G.A. submits that opinion expressed by Doctor, with regard to private part of the prosecutrix clearly supports the statements of the prosecutrix noted above. As such, no indulgence be granted by this Court in favour of applicant.
When confronted with above, learned counsel for applicant could not over come the same.
Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that prosecutrix is young girl aged about 13 years whose modesty has been deliberately dislodged by applicant, therefore, irrespecitve of the submissions urged by the learned counsel for applicant, this Court does not find any good ground to enlarge the applicant on bail.
As a result, present application fails and is liable to be rejected.
It is accordingly rejected.
Order Date :- 21.8.2023
Arshad
Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad
2 issues framed by the court
Whether the court shall grant bail to an accused in a POCSO case where the victim is a minor and the nature of offence is grave.
Whether the delay in lodging the FIR and lack of physical injury found by the medical examiner entitle the accused to bail.
4 provisions across 2 enactments
Kaleem
State Of U.P.
Rajeev Misra
Arshad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
