Allowed

Raj Kumar v. State of U.P. and 3 Others

Allahabad HC6 Sept 2023BAIL/36701/2023

Case brief

AI extract

What is this about?

The Court allowed bail in a POCSO case where the prosecutrix testified she had married the applicant. Noting the solemnization and willingness to live together, the Court held no useful purpose would be served by continued custody, granting bail subject to conditions.

What did the court decide?

Applicant released on bail on personal bond and two sureties subject to conditions regarding evidence, witness intimidation, appearance, and new offences.

Raj Kumar Vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:176729

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36701 of 2023

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Applicant :- Raj Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Shahroze Khan Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Shahroze Khan, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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This application for bail has been filed by the applicant Raj Kumar seeking his enlargement on bail in Case Crime No. 37 of 2023, under Sections 363, 366, 376(3) IPC and Sections 3/4 POCSO Act, Police Station Chilhiya, District Siddharth Nagar during the pendency of trial.

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Present application for bail came up for orders on 29.08.2023 and this court passed the following order:-

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"1. Heard Mr. Shahroze Khan, the learned counsel for applicant and the learned A.G.A. for State.

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2. The provisions of the POCSO Act have been invoked against applicant on the basis of the certificate of the Head Master of the institution regarding the date of birth of the prosecutrix. The certificate issued by the Head Master also records that it is the same institution, which was first attended by the prosecutrix. By reason of above, the said document is reliable in terms of Section 94 of the Juvenile Justice (Care & Protection of Children) Act, 2015. The date of birth of the prosecutrix recorded in the said certificate is 16.05.2010. As per the aforesaid date of birth, the prosecutrix was aged about twelve years, nine months and

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twenty four days on the date of occurrence i.e. 10.04.2023. The issue that has emerged for consideration and has also perturbed the Court is whether the prosecutrix was a girl or a woman on the date of the alleged incident.

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3. Considering the precarious condition of the prosecutrix as well as her tender age, let the prosecutrix appear before this Court on 06.09.2023. The Superintendent of Police, Siddharth Nagar shall ensure that the proseuctrix is duly produced before this Court in person on the next date fixed.

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4. Matter shall accordingly re-appear as fresh on 06.09.2023. "

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In compliance of above order dated 29.08.2023, the prosecutrix has appeared before this Court alongwith her mother accompanied by the lady constable namely Neelam Yadav and Sub Inspector Parvez Ahmad. The mother of the prosecutrix has been examined by court. In her statement the mother has clearly admitted the marriage of the prosecutrix with the applicant. However, she is unable to disclose the age of the prosecutrix.

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Subsequent to above, the prosecutrix has been examined by court. The prosecutrix in her statement has categorically stated that she has solemnized marriage with the applicant Raj Kumar. The prosecutrix was further confronted with her date of birth as recorded in her school record. She submits that in reality her date of birth is 01.01.2004. However, the mother has wrongly mentioned her date of birth as 16.05.2010. The mother of the prosecutrix was also confronted with the above but she has fairly admitted that she has no grievance with the marriage of the prosecutrix with the applicant.

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The presence of the prosecutrix as well as her mother, the lady constable and the police Sub Inspector who have brought the

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prosecutrix in the Court shall be endorsed on the order sheet which shall be counter-signed by the learned A.G.A.

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Considering the fact that marriage of the prosecutrix has already been solemnized with the applicant, both are now ready to live as husband and wife, no useful purpose shall be served in prolonging the custodial arrest of the applicant. As such the applicant has made out a case for bail. 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 24.05.2023. As such he has undergone more than three months of incarceration. 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 up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during pendency of trial. He, therefore, 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 cooperate with the trial.

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Per contra, the learned A.G.A. has opposed the prayer for bail. However he 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, and upon perusal of record, evidence, accusations made, complicity of accused, nature and gravity of offence and coupled with the fact that prosecutrix in her statement before the Court has categorically stated that she has solemnized marriage with the applicant Raj Kumar, the statement of the

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prosecutrix that in reality her date of birth is 01.01.2004, however, the mother has wrongly mentioned her date of birth in the school record as 16.05.2010, the mother of the prosecutrix was also confronted with the above but she has fairly admitted that she has no grievance with the marriage of the prosecutrix with the applicant, the applicant and the prosecutrix both are now ready to live as husband and wife, therefore, no useful purpose shall be served in prolonging the custodial arrest of the applicant, 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 up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during pendency of trial, the clean antecedents of the applicant, the period of incarceration undergone, but without making any comments on the merits of the case the 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 Raj Kumar involved in aforesaid case 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 subject to following conditions.

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i. The applicant will not tamper with the evidence during the trial.

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ii. The applicant will not pressurize/ intimidate the prosecution witness.

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iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

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ix. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

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x. The applicant shall not directly or indirectly make any 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 to any police officer or tamper with the evidence.

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In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

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Order Date :- 6.9.2023

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Aiman

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Digitally signed by :- AIMAN FAROOQUI High Court of Judicature at Allahabad

Raj Kumar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Raj Kumar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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