In a bail application under Sections 363, 366, 376 IPC and POCSO, the Allahabad High Court allowed bail for the applicant despite the absence of appearance by counsel. The court relied on amicus curiae submissions contesting the victim's minority and the prosecution evidence.
Applicant released on bail upon personal bond and two sureties.
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:177145
Court No. - 66
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38167 of 2023 Applicant :- Amit Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Phool Chandra Saroj,Ranjeet Counsel for Opposite Party :- G.A.
Hon'ble Ajay Bhanot,J.
Matter is called out. None appears for the applicant to press the bail application. The names of the learned counsel for the applicant is shown in the cause list.
Learned counsel at the Bar has been requested to assist the Court in the matter. This Court in the light of the holding in Maneesh Pathak vs. State of U.P. passed in Criminal Misc. Bail Application No. 18536 of 2020 is not dismissing the case for non prosecution. Learned members at the Bar have volunteered to assist the Court pro bono in the highest tradition of the profession. The Court has appointed learned counsel as amicus curiae.
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.
By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 0241 of 2023 at Police Station- Bisauli, District- Badaun under Sections 363, 366, 376, IPC, and Section 3/4 of the POCSO Act. The applicant is in jail since 21.05.2023.
The bail application of the applicant was rejected by the learned trial court on 26.06.2023.
The following arguments made by learned counsel as amicus curiae for the applicant, which could not be satisfactorily refuted by learned AGA from the record, entitle the applicant for grant of bail:
(i) The age of the victim was incorrectly got registered in the school records by the victim's parents to give her an advantage in life. The school records disclosing her age as 17 years are unreliable.
(ii) The victim in her statement under Section 161 Cr.P.C. has asserted that she is 17 years of age.
(iii). The medical report drawn up to determine the age of the victim opines that she is around 17 years of age.
Two submissions are made in regard to the aforesaid medical report. Firstly, the range of error in determining the age is about two years and the same should be read in favour of the applicant at this stage. Secondly, the relevant scientific criteria as per latest medical protocol which would establish the majority of the victim has been excluded from consideration in the medical report. The medical report is flawed. In fact the victim is a major.
she was a consenting party.
In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant- Amit 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:-
(i) The applicant will not tamper with the evidence or influence any witness during the trial.
(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
The Court has been informed that the lawyers in district-
Badaun are striking work. Liberty of citizens is too sacrosanct and cannot be held to ransom by striking lawyers.
The District Legal Services Authority (DLSA), Badaun shall ensure that appropriate legal aid is made available to the applicant for purposes of submitting sureties and completion of other formalities for being set forth at liberty.
Registry is directed to send a copy of this order to the District Legal Services Authority (DLSA), Badaun for onward communication to the applicant who is in jail, and for assisting the applicant in the manner stated above.
Order Date :- 12.9.2023 Pravin
Digitally signed by :- PRAVIN VERMA High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicant is entitled to bail given the flaws in victim's age determination and contradictions in prosecution evidence.
Whether the applicant poses a risk of tampering with evidence or influencing witnesses.
Colour shows how this judgement treated each authority
Maneesh Pathak vs. State of U.P.Referred¶6
Maneesh Pathak vs. State of U.P. passed in Criminal Misc. Bail Application No. 18536 of 2020
Junaid vs. State of U.P.Referred¶7
Junaid Vs State of U.P. and another reported at 2021 (6) ADJ 511
Monish vs. State of U.P.Referred¶13
Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021)
Amit Kumar
Ajay Bhanot
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
