Allowed

Chhotu Khan v. the State of U.P. Thru. the Prin. Secy. Deptt. of Home, Lko. and Others

Allahabad HC17 Jan 2024BAIL/440/2024

Case brief

AI extract

What is this about?

Criminal Misc. Bail Application under IPC 376(AB) and POCSO Act. Court examined medical report indicating intact hymen, suggesting sexual assault (Section 7 POCSO) rather than aggravated assault. Held bail maintainable as medical findings did not prima facie establish aggravated offenses.

What did the court decide?

The applicant Chhotu Khan be released on bail furnishing personal bond and two sureties of Rs.25000/- each subject to conditions.

Chhotu Khan vs the State of U.P. Thru. the… — Child Sexual Offences (POCSO) | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:4969

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Court No. - 12

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 440 of 2024

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Applicant :- Chhotu Khan Opposite Party :- The State Of U.P. Thru. The Prin. Secy. Deptt. Of Home, Lko. And Others Counsel for Applicant :- Mohammad Imaran,Mohammad Mustafa Khan Counsel for Opposite Party :- G.A.

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Hon'ble Pankaj Bhatia,J.

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Heard learned counsel for the applicant, learned AGA and perused the record. No one appears for the informant despite notice.

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The accused-applicant seeks bail in Case Crime No.559 of 2022 under sections 376 (AB) IPC and section 5M/6 POCSO Act, P.S. Mandiyaon, District Lucknow.

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In terms of the FIR, it was alleged that on 17.10.2022 at about 5:00 pm, the informant, when he came home, was informed by his daughter aged about seven years that the applicant had allured her and had taken to a separate room where it was alleged that finger was inserted in her private part. On the basis of the said allegations, the FIR was registered for an offence under section 376AB read with section 5M/6 of the POCSO Act.

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In the light of the said allegations, the submission of the counsel for the applicant is that the medical report on record indicates that hymen was intact and no injury was observed and only redness was observed. In the light of the said, he argues that the offence cannot be termed as rape as defined under section 375 of the Indian Penal Code. He further draws my attention that on the basis of the medical report, an offence cannot be termed as 'penetrative sexual assault' as defined under section 3 of the POCSO Act or 'aggravated penetrative sexual assault' as defined under section 5 of the POCSO Act. He argues that in the worst case scenario, on the basis of medical on record, the offence can be termed as a sexual assault as defined under section 7 of the POCSO Act for which the punishment is prescribed under section 8 of the Act for a term of three years up to five years. On the basis of the said, it is argued that the applicant should be enlarged on bail particularly when the applicant has no criminal antecedents except two cases under sections 380 and 411 IPC in which the applicant is on bail.

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Learned AGA, on the other hand, strongly opposes the bail

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application by arguing that the allegation in the FIR would clearly constitute an offence under section 376AB read with section 5M/6 of the POCSO Act and considering the fact that the victim is aged about seven years, the bail application should be rejected.

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Considering the submissions made at the bar, on the perusal of the medical report on record, the hymen was found to be intact and only a redness was observed, as such, prima-facie on the basis of the said medical, it would amount a 'sexual assault' as defined under section 7 of the Act, for which the punishment is prescribed for a term of three to five years even under section 9M of the POCSO Act read with section 10 of the Act, the punishment is prescribed for five years up to seven years. Thus, in view of the said, prima-facie, it cannot be said that the offence under section 376AB read with section 5M/6 of the POCSO Act are made out. However, the same has to be decided at the trial.

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Considering the punishment as prescribed for the offence under section 7/8 of the POCSO Act, read with section 9(m) and 10 of the Act, a case for bail is made out. Thus, the bail application is allowed.

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Let the applicant Chhotu Khan be released on bail in aforesaid first information report number subject to his furnishing a personal bond and two reliable sureties of Rs.25000/- (Twenty Five Thousand) each of the like amount to the satisfaction of the court concerned with the following conditions:

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(a) The applicant shall execute a bond to undertake to attend the hearings;

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(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and

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(c) 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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Order Date :- 17.1.2024 VNP/-

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Digitally signed by :- VISHVANATH PRASAD SHUKLA High Court of Judicature at Allahabad, Lucknow Bench

Chhotu Khan v. the State of U.P. Thru. the Prin. Secy. Deptt. of Home, Lko. and Others

Case brief

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Chhotu Khan v. the State of U.P. Thru. the Prin. Secy. Deptt. of Home, Lko. and Others

Case brief

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