Prince Kumar Vs State of U.P. and 3 Others

Court No. - 83

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5911 of 2023

Applicant :- Prince Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sher Bahadur Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Krishan Pahal,J.

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List has been revised.

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Short counter affidavit filed by the counsel for the victim is taken on record.

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Heard Shri Sher Bahadur Yadav, learned counsel for the applicant and Shri Omkar Nath Shukla, learned counsel for the informant as well as Shri Vibhav Anand Singh, learned A.G.A. for the State and perused the record.

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Applicant seeks bail in Case Crime No.378 of 2022, under Sections 376, 313 I.P.C. & Section 3/4 Protection of Children From Sexual Offences Act, 2012, Police Station Bardah, District Azamgarh, during the pendency of trial.

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As per prosecution story, the applicant is stated to have entered into corporeal relationship with the victim on the pretext of marrying her and thereby impregnating her and is forcibly stated to have got aborted her fetus in the year 2020.

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Learned counsel for the applicant has stated that the applicant is absolutely innocent and has been falsely implicated in the present case. The victim is a consenting party and as per her school certificate also, her date of birth is 18.07.2003 and as per the medical report, she has herself has mentioned her age to be 19 years. Learned counsel has further stated that the victim is major. The victim, as per the statement recorded under Section 164 Cr.P.C., is a consenting party and she has even married the applicant as stated in the short counter affidavit filed today. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no criminal history of the applicant. The applicant is languishing in jail since 20.12.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.

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Learned counsel for the applicant has further placed much reliance on the judgments of Apex Court passed in case of Pramod Suryabhan Pawar vs. State of Maharashtra and Another reported in 2019 (9) SCC 608 and Ansaar Mohammad vs. State of Rajasthan and Another , reported in 2022 SCC OnLine SC 886 , wherein it has been stated that entering into any kind of corporeal relationship with a person on the pretext of getting married cannot be termed as rape.

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Per contra, learned A.G.A. and learned counsel for the informant have vehemently opposed the bail application and have conceded the fact that the victim had married the applicant out of her own sweet will.

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The Apex Court in the case of Union of India vs. K.A. Najeeb, AIR 2021 SC 712 , has observed as under:-

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"We are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail."

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POCSO was formulated to protect children under the age of 18 years from sexual exploitation. Nowadays, more often than not it has become a tool for their exploitation. The Act was never meant to criminalise consensual romantic relationships between adolescents. However, this has to be seen from the facts and circumstances of each case.

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''The factum of consensual relationship borne out of love should be of consideration while granting bail because it would amount to perversity of justice if the statement of victim was ignored and accused was left to suffer behind jail".

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Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, also taking into consideration the judgment of Apex Court passed in the case of K.A. Najeeb (supra) , and without expressing any opinion on the 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.

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Let the applicant- Prince Kumar involved in aforementioned case crime number be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.

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(i) The applicant will not tamper with the evidence during the trial.

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(ii). The applicant will not pressurize/ intimidate the prosecution witness.

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(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

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(iv) The applicant shall not commit an offence similar to the offence of which he is accused, or suspected of the commission of which he is suspected.

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(v) 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 officer or tamper with the evidence.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

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It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.

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Order Date :- 7.2.2023 Ravi Kant

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Digitally signed by :- RAVI KANT High Court of Judicature at Allahabad

Prince Kumar v. State of U.P. and 3 Others

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Prince Kumar v. State of U.P. and 3 Others

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