Dismissed

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

Allahabad HC21 Mar 2023BAIL/43285/2022

Case brief

AI extract

What is this about?

High Court bench dismissed a bail application of Sharad Kumar charged under POCSO Act and Section 376 IPC. The court held that minor's consent is immaterial and rejected bail due to gravity of offence without finding no good ground for false implication.

What did the court decide?

Bail application rejected. Observation confined to issue of bail and shall not affect merits of trial.

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

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Court No. - 75

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43285 of 2022

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Applicant :- Sharad Kumar Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Sanjive Kumar Gupta Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Singh,J.

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Despite service of notice upon the opposite party no. 2 and 4, no one has put in appearance on behalf of the first informant/opposite party no. 4.

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Heard learned counsel for the applicant and learned Additional Government Advocate representing the State.

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By means of this application under Section 439 of Cr.P.C., applicant-Sharad Kumar, who is involved in Case Crime No. 532 of 2022, under Sections 452, 323, 376 IPC and Sections 3/4 POCSO Act, Police Station Ujhani, District Budaun, seeks enlargement on bail during the pendency of trial.

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As per prosecution case in brief, informant who is father of the victim lodged an FIR on 04.08.2022 for the offence under Sections 452, 354-A, 323 IPC and 7/8 of POCSO Act against the present applicant with the allegation inter-alia that on 04.08.2022 when he had gone to his relatives, applicant at about 12:30 am barged into his house and started molesting and outraging the modesty of his minor daughter aged about 16 years. On raising alarm by his daughter, she was beaten by the applicant. Hearing the noise, other people of the locality collected there. They apprehended the applicant at the spot and beaten him.

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The main substratum of argument of learned counsel for the applicant is that victim is aged about 17 years and she was consenting party with the applicant. The victim as well as the applicant were beaten by the relatives of the victim, therefore, they received injuries. It is next argued that the victim, in her statement under Section 161 Cr.P.C., did not make

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allegation of rape against the applicant. The applicant is languishing in jail since 04.08.2022 and in case, the applicant is released on bail, he will not misuse the liberty of bail and cooperate with the trial.

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Per contra, learned A.G.A. for the State opposed the prayer for bail of the applicant by contending that the incident took place on 04.08.2022 at 12:30 am in the night when the victim was alone in her house. It is next argued that the accused applicant was apprehended at the spot by the relatives of the victim and was also beaten by them. It is further submitted that when the statement of the victim under Section 164 Cr.P.C. has been recorded, she has made allegation of rape against the applicant and on the basis of the same, case has been converted into under Sections 452, 323, 376 IPC and Sections 3/4 POCSO Act.

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Having heard learned counsel for the parties and examined the matter in its entirety, I find that there is no dispute that the applicant was apprehended by the victim's family at the spot and he was beaten whereby he received injuries. It is also not disputed that the victim is a minor child as per provisions of Section 2(1)(d) of POCSO Act. The victim in her statement under Section 164 Cr.P.C. has made allegation of rape against the applicant which shall prevail over her statement under Section 161 Cr.P.C. So far as the submission of learned counsel for the applicant that the victim was consenting party with the applicant is concerned, this Court is of the view that as per Section 375 sixthly of IPC, it is well settled that the consent of a minor child is immaterial under the law. According to Section 29 of POCSO Act, the Court shall presume that the accused has committed offence unless the contrary is proved by the offender. As on date, I do not find any good ground to presume the false implication of the applicant and to disbelieve the statement under Section 164 Cr.P.C. at this stage. The offence is heinous in nature.

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Considering the overall facts and circumstances of

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the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant and severity of punishment, I do not find any good ground to release the applicant on bail.

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Accordingly, the bail application is rejected at this stage.

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It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.

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Order Date :- 21.3.2023 Saurabh

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

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

Case brief

What is this about?

What did the court decide?

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

Case brief

What is this about?

What did the court decide?

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