This court rejected the bail application of an accused charged with kidnapping and sexual assault of a minor under POCSO and other IPC provisions. The court found no sufficient grounds to enlarge the applicant despite his plea of innocence and clean antecedents.
Bail application rejected; applicant remained in custody.
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:210131
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39152 of 2023
Applicant :- Ashuthosh Maurya @ Shanauj Maurya Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ashish Srivastava,Raj Kumari Devi Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
mentioned case crime number in terms of Chapter XII Cr.P.C. The prosecutrix was recovered on 09.05.2023. Thereafter, statement of prosecutrix was recorded under Section 161 Cr.P.C, copy of which is on record at page 27 of the paper book. In her aforesaid statement, the prosecutrix has not supported the F.I.R. To the contrary, she has stated that she willingly joined the applicant and accompanied him to Bombay. Subsequently, prosecutrix was requested for her internal medical examination. The Doctor, who medically examined the prosecutrix, did not find any signs on the body of prosecutrix so as to denote commission of sexual assault. However, with regard to the private part of the prosecutrix, the Doctor opined as under: "Hymen - Torn.
(2) 5 SC/ST Act.
"Heard Mr. Ashish Srivastava, the learned counsel for applicant and the learned A.G.A. for State.
At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon the first informant-opposite party-4 on 28.08.2023. However, in spite of service of notice upon the first informant, no one has put in appearance on behalf of first informant-opposite party-4 to oppose this application for bail.
The age of the prosecutrix has been determined on the basis of certificate issued by the Principal of the institution concerned, copy of which is at page 38 of the paper book. By virtue of the provisions contained in Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015, the said certificate cannot be relied upon for determining the date of birth of the prosecutrix.
In view of above, as the charge-sheet has been submitted against applicant on 23.06.2023, the Investigating Officer is directed to file an application before the court below in terms of Section 173(8) CrPC and seek permission of the court to conduct further investigation in the matter to find out the date of birth of the prosecutrix recorded in the institution first attended by her.
Let necessary exercise be undertaken within a period of three weeks.
Copy of the supplementary case-diary shall be transmitted to this Court through the learned A.GA. on or before the next date fixed.
Put up again as fresh on 16.10.2023.
Order Date :- 15.9.2023. "
innocent. He is not named in the F.I.R.. Though applicant is a charge-sheeted accused yet he is liable to be enlarged on bail. Complicity of applicant in the crime in question has emerged in the subsequent statement of the prosecutrix under Section 164 Cr.P.C. On the above premise, he submits that applicant is liable to be enlarged on bail. As per subsequent statement of the prosecutrix her modesty was forcibly dislodged by chargesheeted co-accused Roshan and not by the applicant. Therefoe, case of present applicant is clearly distinguishable from coaccused Roshan.
version as unfolded in the statement of the prosecutrix under Section 164 Cr.P.C. As per date of birth of the prosecutrix recorded in the institution, which was first attended by her is 04.08.2010. Occurrence giving rise to present criminal proceedings is alleged tohave occurred on 04.05.2023. As such, the prosecutrix was aged about 12 years and 9 months on the date of occurrence. It is thus contended that no sympathy be shown by this Court in favour of applicant. Prosecutrix is a young girl of tender age. Even if there was consent given by the prosecutrix, the same is immaterial. To buttress his submission he has relied upon the judgement of Supreme court in X (Minor) Vs. The State of Jharkhand and Another ( 2022 Live Law (SC) 194 . On the aforesaid premise, it is thus urged that no good ground exits to enlarge the applicant on bail. As such, present applicant for bail is liable to be rejected.
17. It is accordingly rejected .
Order Date :- 2.11.2023 YK
Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad
2 issues framed by the court
Whether sufficient good grounds exist to enlarge the charge-sheeted accused on bail in a POCSO related case.
Whether the custody of the accused during the pendency of trial is justified given the gravity of the offence and the prosecutrix's age.
Colour shows how this judgement treated each authority
X (Minor) Vs. The State of Jharkhand and AnotherReferred¶29
X (Minor) Vs. The State of Jharkhand and Another ( 2022 Live Law (SC) 194
3 provisions across 3 enactments
Ashuthosh Maurya
State Of U.P.
Rajeev Misra
Yashwant Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
