This court allowed a bail application filed in a case involving kidnapping and sexual offences under the POCSO Act. The court considered arguments regarding the victim's age and consent before granting bail subject to personal bond and sureties.
Application allowed; applicant released on personal bond and two sureties subject to specified conditions.
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Neutral Citation No. - 2023:AHC:126817
Court No. - 69
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55114 of 2022
Applicant :- Pankaj Opposite Party :- State Of U.P And 3 Others Counsel for Applicant :- Shekhar Gangal,Yogesh Kumar Tiwari Counsel for Opposite Party :- G.A.,Mrityunjay Dwivedi
Hon'ble Mayank Kumar Jain,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The present bail application has been filed on behalf of applicant in Case Crime No. 934 of 2022, under Sections 363, 376 of IPC & Section 3/4 Protection of Children From Sexual Offence Act, 2012, Police Station Kwarsi, District Aligarh with the prayer to enlarge the applicant on bail.
It has been argued by learned counsel for the applicant that applicant is innocent and he has been falsely implicated in the present case. Victim in her statement recorded under Section 161 Cr.P.C. stated that she accompanied the applicant at her own accord since she was having love affair with the applicant and she wanted to marry with him. It is further submitted that perusal of the statement of the victim recorded under Section 164 Cr.P.C. indicates that victim was a consenting party. It is further submitted that victim refused to undergo for her medical examination. It is further submitted that PW1/informant (mother of the victim) and PW2/victim during their cross-examination did not support the prosecution version before the trial court. As per the medical examination report of the victim, her age was determined to be 20 years at the time of incident. It is further submitted that applicant is languishing in jail since 06.10.2022 having no criminal history and that in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
Per contra, the learned Additional Government Advocate assisted by learned counsel for the informant has opposed the prayer for grant of bail by contending that as per the birth certificate of the victim, her date of birth is 05.02.2006. Therefore, she was minor at the time of incident.
In Union of India Vs. K.A. Najeeb (2021) 3 SCC 713 , the Hon'ble Apex Court has observed that:-
"15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee v. Union of India SCC para-15 it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."
Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant Pankaj in the aforesaid crime be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned subject to the following conditions:
(1). The applicant will not tamper with the prosecution evidence during the trial.
(2). The applicant will not influence any witness.
(3). The applicant will appear before the trial Court on the date fixed, unless personal presence is exempted.
(4). 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 to any police officer or tamper with the evidence.
In case of breach of any of the above condition, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail.
Order Date :- 15.6.2023
AKT
Digitally signed by :- ASHOK KUMAR TRIPATHI High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicant is entitled to bail given the conflicting views on the victim's age and consent.
Whether the long period of incarceration warrants a grant of bail.
Colour shows how this judgement treated each authority
Union of India Vs. K.A. NajeebReferred¶10
Union of India Vs. K.A. Najeeb (2021) 3 SCC 713 · Who else cites this
2 provisions across 2 enactments
Pankaj
State Of U.P
Mayank Kumar Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
