Dismissed

Shilu @ Shailendra Kumar Pathak v. State of U.P.

Allahabad HC4 Apr 2023BAIL/44077/2022

Case brief

AI extract

What is this about?

The Allahabad High Court rejected the second bail application of an applicant accused of kidnapping and raping a minor under Section 376AB IPC and POCSO Act. The court held gravity of the offence bars bail and directed the trial court to conclude proceedings expeditiously under Section 309 Cr.P.C.

What did the court decide?

Bail application rejected. Trial court directed to conclude trial expeditiously under Section 309 Cr.P.C.

Shilu @ Shailendra Kumar Pathak Vs State of… — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Court No. - 75

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44077 of 2022

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Applicant :- Shilu @ Shailendra Kumar Pathak Opposite Party :- State of U.P. Counsel for Applicant :- Yogesh Kumar Vaish Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Singh,J.

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Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and Mr. Surjit Kumar, learned counsel appearing on behalf of the informant.

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By means of this second bail application under Section 439 of Cr.P.C., applicant-Shilu @ Shailendra Kumar Pathak, who is involved in Case Crime No. 279 of 2019, under Sections 354, 376AB, 452, 506 IPC and Sections 3/4 of POCSO Act, Police Station Jalalabad, District Shahjahanpur seeks enlargement on bail during the pendency of trial.

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The first bail application of the applicant was rejected vide order dated 09.12.2019 passed in Criminal Misc. Bail Application No. 42803 of 2019.

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As per prosecution case in brief, informant who is maternal grand-mother of the victim lodged an FIR on 17.06.2019 against the applicant for the offence under Section 354 IPC and Sections 7/8 of POCSO Act with the allegation inter-alia that on 16.06.2019, when her maternal grand-daughter, aged about 10 years, was sleeping on her rooftop, the applicant barged into her house and made an attempt to outrage her modesty. In 161 Cr.P.C. statement, the prosecutrix has clarified as to in what manner, she was subjected to molestation by the applicant. In 164 Cr.P.C. statement, she states that she was subjected to rape by the applicant but the police authorities have not registered her correct report.

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The main substratum of argument of learned counsel for the applicant is that before the trial court, informant and victim have been examined as PW-1 and PW-2 but there are contradictions in their

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statements, therefore, applicant who is languishing in jail since 18.06.2019 is entitled to be released on bail.

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Per contra, learned A.G.A. for the State as well as learned counsel for the informant opposed the prayer for bail of the applicant by contending that the informant, in her statement before the trial court, has made allegation of rape on her minor maternal grand-daughter and the victim, who is minor and student of class-9th, has also made allegation against the applicant stating therein that he along with others barged into her house when she was sleeping at the roof of her house and the applicant stuffed hanker-chief in her mouth and three other persons sat on her. On raising alarm, they have also beaten her. It is also submitted that for the offence under Section 376AB IPC, minimum sentence is 20 years, therefore, considering the gravity of the offence, applicant is not entitled to be released on bail.

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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 victim is minor child, aged about 10 years and before the trial court, statement of informant and victim has been recorded in which allegations have been levelled against the applicant. The contradictions as pointed out cannot be said to be material contradictions and do not goes into the root of the matter so as to demolish the entire prosecution case. This Court, at this stage, in exercise of power under Section 439 Cr.P.C., does not deem it appropriate to discuss and evaluate the evidence in detail as the defence of the accused is still open to be urged before the trial court.

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Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant, evidence on record 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 .

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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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However considering the detention period of the applicant, the trial court is directed to make an endeavour to conclude the trial of the applicant, expeditiously, without granting any unnecessary adjournment to either of the parties in accordance with the provisions of Section 309 Cr.P.C.

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Order Date :- 4.4.2023 Saurabh

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

Shilu @ Shailendra Kumar Pathak v. State of U.P.

Case brief

What is this about?

What did the court decide?

Shilu @ Shailendra Kumar Pathak v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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