In a bail application under Section 439 Cr.P.C. for offences under IPC and POCSO Act involving a minor, the Single Judge rejected the plea alleging forgery of age proof as a matter for trial and found no grounds for bail.
Bail application rejected.
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Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54479 of 2022
Applicant :- Arun Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sunil Kumar Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Despite service of notice upon the informant/ opposite party no. 2, no one has put in appearance on her behalf.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State.
By means of this application under Section 439 of Cr.P.C., applicant Arun, who is involved in Case Crime No. 506 of 2022, under Sections 363, 376 IPC and Section 3/4 POCSO Act, police station Sikandrabad, district Bulandshahr, seeks enlargement on bail during the pendency of trial.
As per prosecution case, in brief, informant, who is mother of the victim, lodged the first information report on 03.06.2022 against the applicant and five others, namely, Anita, Sunita, Seetu, Naik Singh and contractor Lakhmi making allegation inter alia that on 25.05.2022 at about 04:00 o'clock, her minor daughter aged about 13 years was enticed away by the applicant and in the said act of the applicant, other co-accused have helped him.
Main substratum of argument of learned counsel for the applicant is that though in the F.I.R., it is alleged that victim is minor child aged about 13 years but she was major on the date of incident and was consenting party with the applicant. Certificate issued by Head Master of the Prathmik Vidyalaya, Sirondhan, Vikas Kshetra Sikandrabad, District Bulandshahr collected by the Investigating OfÏcer regarding education and age of the victim, is a forged and fabricated document because the victim is illiterate and she in her statement under Section
161 Cr.P.C. has also stated that she is not educated. The victim has refused for her internal medical examination. The applicant does not have any criminal history to his credit. Lastly, it is submitted by learned counsel for the applicant that there is no chance of the applicant fleeing away from the judicial process or tampering with the prosecution evidence. The applicant is languishing in jail since 07.06.2022 and in case, the applicant is released on bail, he will not misuse the liberty of bail and cooperate with the trial.
Per contra, learned A.G.A. for the State opposed the prayer for bail of the applicant by contending that as per certificate issued by Head Master of the Prathmik Vidyalaya, Sirondhan, Vikas Kshetra Sikandrabad, District Bulandshahr, the victim is studying in Class IV and as per the school record, her date of birth is 02.01.2009, according to which, she was aged about 13 years, 04 months and 23 days on the date of incident, i.e., 25.05.2022. He also submits that the victim in her statement under Section 164 Cr.P.C. has made allegation of rape against the applicant.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that as per the material collected by the Investigating OfÏcer as noted above, the victim is minor child. The allegation of rape has been levelled against the applicant by the victim in her statement under Section 164 Cr.P.C. As on date, I do not find any material on record to disbelieve the statement of the victim and to presume false implication of the applicant.
In view of Section 29 POCSO Act, presumption shall also be drawn against the accused unless contrary is proved by him.
So far as submission of learned counsel for the applicant that document regarding age proof of the victim collected by the Investigating OfÏcer is forged and fabricated is concerned, the same is a matter of proof in accordance with law before the trial Court.
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 and severity of punishment, I do not find any good ground to release the applicant on bail.
Accordingly, the bail application is rejected .
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.
Order Date :- 28.4.2023 Shubham
Digitally signed by :- SHUBHAM KUMAR AGRAHARI High Court of Judicature at Allahabad
2 issues framed by the court
Whether there is any good ground to release the applicant on bail during the pendency of trial.
Whether the alleged documents regarding the age and education of the victim are forged and fabricated.
6 provisions across 3 enactments
Arun
State Of U.P.
3 Others
Sanjay Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
