Allowed

Ravendra v. State of U.P. and 3 Others

Allahabad HC25 Sept 2023BAIL/35112/2023

Case brief

AI extract

What is this about?

This court allowed a bail application filed by Ravendra charged under POCSO and IPC. Relying on judicial precedent and a medical report stating the prosecutrix was 16 and a willing consenting party, the court held that no incriminating circumstance necessitated custodial arrest. Bail was granted subject to specific conditions.

What did the court decide?

Bail allowed on furnishing personal bond and two sureties subject to specified conditions of appearance and no adjournment.

Ravendra Vs State of U.P. and 3 Others — Narcotics (NDPS) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:185989

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35112 of 2023

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Applicant :- Ravendra Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Chandra Dutt Counsel for Opposite Party :- G.A.,Archana Singh,Dharmendra Kumar

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Hon'ble Rajeev Misra,J.

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Heard Mr. Chandra Dutt, the learned counsel for applicant, the learned A.G.A. for State, Mr. Dharmendra Kumar, the learned counsel representing first informant-opposite party 2 and Miss Archana Singh, the learned counsel representing opposite party 3, High Court Legal Services Committee, High Court, Allahabad.

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Perused the record.

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This application for bail has been filed by applicant-Ravendra, seeking his enlargement on bail in Case Crime No. 71 of 2023, under Sections 363, 366, 376(2)(n) IPC and Sections 5/6 POCSO Act, Police Station-Maudaha, District-Hamirpur during the pendency of trial.

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Present application for bail came up for admission for orders on 21.08.2023 and this Court passed the following order:-

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"Heard Mr. Chandra Dutt, the learned counsel for applicant and the learned A.G.A. for State.

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The provision of POCSO Act has been invoked upon applicant. Primarily in view of the date of birth of the prosecutrix, recorded in the school leaving certificate, pertaining to the prosecutrix by virtue of Section 94 Juvenile Justice (Care and Protection) Act, the age of the prosecutrix cannot be determined. Also in view of judgement of Supreme Court in P. Yuvaprakash Vs. State, 2023 Live Law (SC) 538, wherein it has been held that age of the prosecutrix cannot be determined as per the scholar register.

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In view of above, CMO, Hamirpur is directed to conduct the ossification test/radiological test of the prosecutrix for determining the age of the prosecutrix.

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Let necessary exercise be taken within within a period of one month from

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today.

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Put up as fresh on 25.9.2023."

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Subsequent to above order dated 21.08.2023, the Chief Medical Officer has got done the medical determination of age of the prosecutrix. As per the said certificate dated 16.09.2023, the age of the prosecutrix is said to be about 16 years.

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Record shows that in respect of an incident, which is alleged to have occurred on 14.02.2023, a delayed FIR dated 17.02.2023 was lodged by first informant-Bachcha Yadav (father of the prosecutrix) and was registered as Case Crime No. 71 of 2023, under Sections 363, 366 IPC, Police Station-Maudaha, DistrictHamirpur. In the aforesaid FIR, applicant-Ravendra and coaccused Udaybhan have been nominated as named accused.

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The gravamen of the allegations made in the FIR to the effect that named accused enticed away the minor daughter of the first informant namely - prosecutrix in the night of 14/15.02.2023 in between 10:00 PM to 01:00 AM.

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After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The prosecutrix was recovered on 24.03.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. Same is on record at page 33 of the paper book. The prosecutrix in her aforesaid statement has not supported the FIR. To the contrary, the prosecutrix has stated that she herself went to the applicant and thereafter accompanied him to Kanpur. Subsequent to above, the prosecutrix was requested for her internal medical examination. However, the prosecutrix refused to give her consent for internal medical examination. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. Same is on record at page 49 of the paper book. The prosecutrix in her aforesaid statement has rejoined her earlier statement recorded under Section 161 Cr.P.C.

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During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have supported the FIR. During course of investigation, Investigating Officer recovered the School Leaving Certificate of the prosecutrix wherein her date of birth is recorded as 01.01.2009. The occurrence giving rise to present criminal proceedings is alleged to have occurred on 14.02.2023. As such,

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the prosecutrix was aged about 14 years on the date of occurrence. Accordingly, the Investigating Officer submitted the charge sheet dated 21.06.2023 whereby applicant-Ravendra has been charge sheeted under Sections 363, 366, 376(2)(n) IPC and Sections 5/6 POCSO Act whereas the other co-accused has been exculpated.

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Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. The provisions of the POCSO Act have been attracted against the applicant simply on the basis of date of birth of the prosecutrix recorded in the School Leaving Certificate, copy of which is on record at page 52 of the paper book. With reference, to the provisions contained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and also the judgment of the Supreme Court in P. Yuvaprakash Vs. State, 2023 SCC OnLine SC 846, he submits that the said document could not be relied upon to determine the age of the prosecutrix as per the date of birth recorded therein.

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It is next contended that subsequent to the order passed by this Court referred to above, the exercise for medical determination of the age of the prosecutrix was got conducted by the Chief Medical Officer, Hamirpur wherein it has been opined that the prosecutrix is aged about 16 years. Reference was then made to the statements of the prosecutrix recorded under Sections 161/164 Cr.P.C. wherein the proseuctrix has not supported the FIR. To the contrary, the prosecutrix has stated that she herself joined the present applicant. As such, the prosecutrix is a willing and consenting party. On the above premise, it is thus urged by the learned counsel for applicant that no offence under Sections 363, 366 IPC can be said to have committed by the applicant. There is no medical evidence supporting charge sheet as the prosecutrix has herself refused for her internal medical examinaiton. As such, no offence under Section 376(2)(n) IPC and Sections 5/6 POCSO Act is made out against applicant.

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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 25.03.2023. As such, he has undergone more than 6 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, it is thus urged that applicant is

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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.

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Per contra, the learned A.G.A. for State, the learned counsel representing first informant and the learned counsel representing opposite party 3 have vehemently opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The prosecutrix is a young girl aged about 16 years, whose modesty has been deliberately dislodged by the applicant. As such, no sympathy be shown by this Court in favour of applicant. However, the learned A.G.A. for State, the learned counsel representing first informant and the learned counsel representing opposite party 3 could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

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Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, the learned counsel representing opposite party 3, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that as per the medical opinion, the prosecutrix is aged about 16 years, the prosecutrix is a willing and consenting party, there is no medical evidence to show that the modesty of the prosecutrix was dislodged by the applicant, the prosecutrix in her statements under Sections 161/164 Cr.P.C. has not implicated the present applicant for any crime, the judgment of the Supreme Court referred to above, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, however, no such circumstance could be pointed out by the counsel for the opposite parties necessitating the custodial arrest of the applicant during the pendency of trial, the clean antecedents of the applicant, the period of incarceration undergone, therefore, irrespective of the objections raised by the counsel for the parties in opposition to present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

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Accordingly, the bail application is allowed .

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Let the applicant-Ravendra, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court

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

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(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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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(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

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(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

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(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

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Order Date :- 25.9.2023 Vinay

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

Ravendra v. State of U.P. and 3 Others

Case brief

What is this about?

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Ravendra v. State of U.P. and 3 Others

Case brief

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