In a bail application citing IPC 363/376 and POCSO, the High Court found the victim near major and capable of consent based on medical reports and lack of x-ray. The court allowed bail with conditions.
Released on personal bond and two sureties with conditions of court attendance, non-interference, and non-criminal activity.
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.
Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49252 of 2022
Applicant :- Adesh Alias Sintu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mayank Yadav,Vivek Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
As per counter afÏdavit dated 19.12.2022 filed on behalf of the State, notice has been served upon the informant (father of the victim) on 28.10.2022 but no one has put in appearance on his behalf.
Heard learned counsel for the applicant and learned Additional Government Advocate representing the State.
The instant bail application under Section 439 of Cr.P.C. has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 50 of 2022, under Sections 363, 376 I.P.C. and Sections 5L/6 Protection of Children From Sexual Offences Act, Police Station-Niwari, DistrictGhaziabad, during the pendency of trial.
As per the prosecution case in brief, informant who is father of the victim lodged an F.I.R. on 30.03.2022 against the present applicant for the offence under Section 363 I.P.C. with the allegation inter-alia that on 28.03.2022 at about 04:00 am, he enticed away his minor daughter. F.I.R. also alleges that his daughter, while going with the applicant, also took Rs. 50,000/- and some gold & silver ornaments.
The main substratum of argument of learned counsel for the applicant is that the victim was major on the day of incident and she was consenting party with the applicant. It is also pointed out that the victim, in her statement under Section 161 and 164 Cr.P.C., did not make allegation of rape against the applicant and she has clearly stated that they, after solemnizing their marriage, started living together as husband and wife after taking an accommodation on rent. The physical relation was also made between them with the consent of each other. The applicant
has no criminal history to his credit and is languishing in jail since 04.06.2022 and in case he is released on bail, he will not misuse the liberty of bail and co-operate in early disposal of the case.
Per-contra learned A.G.A. for the State opposed the prayer for bail of the applicant by contending that as per educational documents of the victim, she was aged about 17 years and 3 months on the day of incident, therefore, her consent is immaterial.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that after medical examination of the victim on 03.06.2022, she was referred for x-ray in order to determine her actual age. Reference slip was also issued in this regard which is mentioned in the medical examination report dated 03.06.2022 of the victim itself but no x-ray was done. Considering the age of the victim as submitted by learned A.G.A., I find that the victim was near to major, therefore, she was capable to understand the significance and morality associated with the act, for which she was consenting. There is no dispute that the victim did not support the prosecution case in her statement.
Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and in the light of statement of the victim, I am of the view that the applicant has made out primafacie case for bail. Hence, the bail application is hereby allowed .
Let the applicant- Adesh Alias Sintu , 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 concerned with the following conditions which are being imposed in the interest of justice:-
(i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.
(ii) That the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police ofÏcer or tamper with the evidence.
(iii) That after his release, the applicant shall not involve in any criminal activity.
(iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant on bail.
In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the applicant.
Order Date :- 3.5.2023 Saurabh
Digitally signed by :- SAURABH KUMAR High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicant was entitled to bail in a case involving Section 363 and 376 IPC where the victim was alleged to be a minor.
Whether the victim's consent was relevant given her alleged age and medical findings.
3 provisions across 2 enactments
Adesh Alias Sintu
State Of U.P.
Sanjay Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
