In a bail application under the POCSO Act and IPC, the Court allowed bail contending minor's age inconsistencies and doubts regarding consent. Bail granted on bonds with conditions not to tamper.
Applicant released on bail with personal bond and two sureties each; conditions imposed not to tamper with evidence or influence witnesses.
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.
Neutral Citation No. - 2023:AHC:152032
Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5546 of 2023 Applicant :- Khushiram Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Sushil Kumar,Jag Narayan Counsel for Opposite Party :- G.A.,Vijay Bahadur Shivhare Hon'ble Ajay Bhanot,J.
Supplementary affidavit filed by the applicant is taken in the record.
Shri Paritosh Kumar Malviya, learned AGA-I contends that the police authorities in compliance of the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served the bail application upon the victim/legal guardian as well as upon the CWC. By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No.234 of 2022 at Police Station-Talgram, District-Kannauj under Sections 363, 376 IPC and Section 3/4 of the POCSO Act. The applicant is in jail since 20.09.2022.
The bail application of the applicant was rejected by the learned trial court on 29.10.2022.
The following arguments made by Shri Jag Narayan, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Sandeep Kumar,
learned counsel holding brief of Vijay Bahadur Shivhare, learned counsel for the informant and Shri Paritosh Kumar Malviya, learned AGA-I from the record, entitle the applicant for grant of bail:
(i) There are material contradictions in various prosecution documents relating to the victim's age.
(ii) The victim in her statements under Section 161 Cr.P.C. and under Section 164 Cr.P.C. has asserted that she is 12 years of age.
(iii) The medical report drawn up to determine the age of the victim opines that she is around 16 years but below 18 years of age.
Two submissions are made in regard to the aforesaid
medical report. Firstly, the range of error in determining the age is about two years and the same should be read in favour of the applicant at this stage. Secondly, the relevant scientific criteria as per latest medical protocol which would establish the majority of the victim has been excluded from consideration in the medical report. The medical report is flawed. In fact the victim is a major.
10.The trial is moving at a snail's pace and shows no signs of an early conclusion. The applicant is not responsible for
the delay in the trial.
In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant-Khushiram 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 below. The following conditions be imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence or influence any witness during the trial.
(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
Order Date :- 28.7.2023 Ashish Tripathi
Digitally signed by :- ASHISH NAYAN TRIPATHI High Court of Judicature at Allahabad
3 issues framed by the court
Whether bail should be granted to the applicant in view of contradictions in the FIR regarding the victim's age and consent.
Whether the proposed medical report regarding the age of the victim is flawed and the victim is a major.
Whether the inordinate delay in the trial warrants granting bail.
Colour shows how this judgement treated each authority
Junaid Vs State of U.P. and anotherReferred¶4
Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511
Monish Vs. State of U.P. and othersReferred¶10
Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021)
5 provisions across 3 enactments
Khushiram
State Of U.P.
Ajay Bhanot
Ashish Tripathi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
