Allowed

Shobhit Yadav @ Mohit Yadav v. State of U.P. Thru. Addl. Chief Secy. Home Lko. and Another

Allahabad HC12 Dec 2024CRLA/428/2024

Case brief

AI extract

What is this about?

The High Court set aside the order rejecting bail in an appeal under the SC/ST Act and IPC. Relying on non-compliance with mandatory timelines for recording evidence and completing trial under Section 35 of the POCSO Act, and Supreme Court jurisprudence on age determination, the Court allowed bail to the appellant subject to conditions.

What did the court decide?

Appellant released on bail on furnishing a personal bond with two sureties, subject to conditions including presence at trial, non-tampering with evidence, and non-intimidation of witnesses.

Shobhit Yadav @ Mohit Yadav Vs State of U.P. Thru… — Matrimonial and Divorce | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:83291

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Court No. - 16

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Case :- CRIMINAL APPEAL No. - 428 of 2024

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Appellant :- Shobhit Yadav @ Mohit Yadav Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. And Another

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Counsel for Appellant :- Pradeep Chaurasia,Devendra Gupta,J.B. Singh,Prashant Shukla,Satyendra Nath Pandey Counsel for Respondent :- G.A.,Ankit Gupta,Brijesh Kumar Verma

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Hon'ble Karunesh Singh Pawar,J.

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Heard learned counsel for the appellant, learned A.G.A. appearing for the State and learned counsel for the complainant as well as perused the record.

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This criminal appeal has been filed by the appellant under Section 14A (2) the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to set aside the order dated 25.01.2024 passed in Bail application No.442/2024, arising out of case crime No.470/2023, under Sections 363, 366 I.P.C. and Sections 3(2)V of S.C./S.T. Act, Police Station Chinhat, District Lucknow.

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In the prosecution case it is alleged that minor daughter of the informant aged about 13 years who is in Class VII went out for coaching on 27.10.2023 at about 03:30 pm however, did not return till 07:00 pm. The apprehension has been made in the F.I.R. that minor daughter of the informant has been enticed away by someone.

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Learned counsel for the appellant while pressing the appeal submits that, the appellant has been falsely implicated in this case. Nothing as claimed by the prosecution has been committed by the appellant.

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It is contended on behalf of the appellant that victim has been recovered on 17.11.2023. Victim has stayed with the appellant for approximately 20 days without raising alarm. From the statement of the victim under Sections 161 & 164 Cr.P.C. she went with appellant to Nepal then to Mumbai. She went on her own accord and her free will. There is no allegation of rape upon the appellant. He submits that 13 years age of the victim has been opined by the Investigating Officer on the basis of Class V mark-sheet which cannot be the basis for determination of the age of the victim as per Section 94 of the Juvenile Justice Care and Protection of Children Act, 2015. He submits that medical board has opined the age of the victim as 15 years however, plus-minus two years of variation is possible on either side in determination of the age as per the ossification test and the appellant being the accused is entitled to the benefit of higher side in view of the judgment of the Supreme Court passed in the case of "Jaya Mala v. Govt. of J & K, (1982) 2 SCC 538" and thus, victim is easily 17 years old and has achieved the age of consent and so she is a consenting party. There is no injury in the medical examination of the victim. The victim has not made any allegation of rape. Applicant has no criminal history.

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It is further submitted that, the appellant is languishing in jail in this matter since 19.11.2023. There is no likelihood that the appellant after release on bail may flee from the process of law or will misuse the liberty of bail granted by this Court.

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Learned A.G.A. as well as learned counsel for the complainant have opposed the prayer for bail. Learned counsel for the complainant has submitted that informant has been examined so far in the trial. He further submits that informant as well as some part of the statement of the victim has also been recorded before the trial court, examination of victim is going on.

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Perused the record.

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Considering the facts and circumstance of the case, fact that appellant is in jail since 19.11.2023 having no criminal history, provisions of Section 35 of the POCSO Act wherein it is provided that evidence of a child shall be recorded within a period of thirty days by the special court taking cognizance of the offence and further under sub-section (2) of Section 35 it is provided that special court shall complete the trial within a period of one year from the date of taking cognizance, it appears from the record that provisions of Section 35 of the POCSO Act have not been followed which are mandatory in nature so also considering the law laid down by Hon'ble Supreme Court in the case of Javed Gulam Nabi Shaikh vs. State of Maharashtra and another : Criminal Appeal No.2787 of 2024 , statement of the victim under Sections 161 & 164 Cr.P.C. but without commenting upon merits, I am of the view that the learned court below has failed to appreciate the material available on record. In view of above, the order passed by the court below is liable to be set aside.

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Accordingly, the appeal is allowed and the order dated 25.01.2024 passed in Bail application No.442/2024, arising out of case crime No.470/2023, under Sections 363, 366 I.P.C. and Sections 3(2)V of S.C./S.T. Act, Police Station Chinhat, District Lucknow, is set aside.

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Let the appellant Shobhit Yadav @ Mohit Yadav involved in aforesaid case be released on bail on furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-

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

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(ii) The appellant will not pressurize/ intimidate the prosecution

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witness.

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(iii) The appellant 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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(iv) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(vi) In case, the appellant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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The pending application, if any, too stands disposed of.

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Order Date :- 12.12.2024 Saurabh Yadav/-

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Digitally signed by :- SAURABH YADAV High Court of Judicature at Allahabad, Lucknow Bench

Shobhit Yadav @ Mohit Yadav v. State of U.P. Thru. Addl. Chief Secy. Home Lko. and Another

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Shobhit Yadav @ Mohit Yadav v. State of U.P. Thru. Addl. Chief Secy. Home Lko. and Another

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