Allowed

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

Allahabad HC25 Aug 2023BAIL/37682/2023

Case brief

AI extract

What is this about?

The Allahabad High Court allowed a bail application filed by Nilesh Kumar, who was facing charges under the POCSO Act and IPC sections. The court accepted arguments challenging the victim's minor status and the nature of the relationship, emphasizing the lack of rape allegations in the FIR and the victim's statement of elopement and marriage.

What did the court decide?

The applicant Nilesh Kumar is released on bail on furnishing a personal bond and two sureties each to the satisfaction of the court below.

Nilesh 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:172122

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Court No. - 66

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37682 of 2023

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Applicant :- Nilesh Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ravindra Prakash Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Ajay Bhanot,J.

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Shri Shrawan Kumar Dubey, learned AGA contends that the police authorities in compliance of the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served the bail application upon the victim/legal guardian as well as upon the CWC.

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By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 402 of 2022 at Police Station-Bakhira, District-Sant Kabir Nagar under Sections 363, 366, 504, 452, 376, 352, 506 IPC and Section 5/6 of the POCSO Act. The applicant is in jail since 20.07.2023.

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The bail application of the applicant was rejected by the learned trial court on 26.07.2023.

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The following arguments made by Shri Ravindra Prakash Srivastava assisted by Shri Akhil Krishna, learned counsel on behalf of the applicant, which could not be

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satisfactorily refuted by Shri Shrawan Kumar Dubey, learned AGA from the record, entitle the applicant for grant of bail:

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Learned counsel for the applicant contests the minority of the victim as depicted in the prosecution case.

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The victim was wrongly shown as a minor in the prosecution case only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.

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Learned counsel for the applicant contests the age of the victim set out in the prosecution case in light of the judgement of this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021) and on the following grounds:

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(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.

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(ii) The victim in her statements under Section 161 Cr.P.C. and Section 164 Cr.P.C. has asserted that she is 22 years of age.

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(iii). The medical report drawn up to determine the age of the victim opines that she is 19 years of age. The victim is in fact major.

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The victim and the applicant were intimate.

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FIR is a result of the opposition of the family members

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of victim to the said relationship.

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The victim in her statement under Section 164 Cr.P.C. has admitted to intimacy with the applicant. She has stated that she eloped with the applicant to Mumbai and has got married to him on her own volition.

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The victim also asserts that their marriage has been consummated and the two have stayed together in Mumbai as a married couple for three months.

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No allegation of commission of rape by the applicant with the victim was made in the F.I.R. nor in the statement of the victim under Section 164 Cr.P.C.

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Medical evidence to corroborate the commission of rape by the applicant with the victim has been produced by the prosecution.

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The applicant does not have any criminal history apart from this case.

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The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.

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In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.

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Let the applicant- Nilesh Kumar be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-

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(i) The applicant will not tamper with the evidence or influence any witness during the trial.

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

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Order Date :- 25.8.2023 Jaswant

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

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

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

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