Ajay Kumar @ Shriram v. State of U.P. and 3 Others

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37687 of 2023 Applicant :- Ajay Kumar @ Shriram Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vimal Kumar Pandey,Bachan Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

¶1Heard Mr. Vimal Kumar Pandey, the learned counsel for applicant and the learned A.G.A. for State.

¶2Perused the record.

¶3Instant application for bail has been filed by applicant-Ajay Kumar @ Shriram seeking his enlargement on bail in Case Crime No. 152 of 2023 under Sections 504, 506, 406, 366, 376 I.P.C. and Sections 3/4, POCSO Act, Police Station-Kubersthan, District-Kushi Nagar, during the pendency of trial.

¶4At the very outset, the learned A.G.A. submits that notice of present bail application has been served upon first informant/opposite party-2 on 21.08.2023. However, inspite of service of notice, no one has put in appearance on behalf of first informant/opposite party-2 to oppose this application for bail

¶5Record shows that in respect of an incident which is alleged to have been occurred on 14.06.2023, a delayed F.I.R. dated

19.11.2023 was lodged by first informant-Vanarasi Prasad (Father of the prosecutrix) and was registered as 152 of 2023 under Sections 504, 506, 406, 363, 376 I.P.C. and Sections 3/4, POCSO Act, Police Station-Kubersthan, District-Kushi Nagar. In the aforesaid applicant-Ajay Kumar @ Shriram has been nominated as solitary named accused.

¶7The gravamen of the allegations made in the F.I.R. is to the effect that named accused developed relationship with the prosecutrix and thereafter enticed away the minor daughter of first informant namely X on 13.06.2023 by extending false promise of marriage.

¶8Learned counsel for applicant contends that though applicant is a named and charge-sheeted accused inasmuch as the charge sheet has been submitted against applicant on 23.06.2023 yet the applicant is liable to be enlarged on bail. Referring to the F.I.R. giving rise to present criminal proceedings is alleged, the learned counsel for applicant contends that the occurrence giving rise to present criminal proceedings is alleged to have occurred on

13.06.2023 whereas F.I.R. was lodged on 19.06.2023. He however contends that said F.I.R. came to be lodged on 19.06.2023 on the basis of an order passed under Section 156 (3) filed by first informant. Even otherwise, on the date of lodging of the F.I.R. the prosecutrix was major as her date of birth in the High School Certificate is recorded as 04.03.2004. The occurrence giving rise to present criminal proceedings occurred on 13.04.2023. As such prosecutrix was aged about 19 years 3 months and 26 days on the date of occurrence. Prosecutrix and applicant were having love affair for a long time. On the above premise, he submits that the F.I.R. is highly belated. Referring to Paragraph 8 of the judgement of Apex Court in P. Rajagopal Vs. State of Tamilnadu, AIR 2019 SC 2866, as well as Mandar Deepak Pawar Vs. State of Maharashtra and Another, 2022 Live Law (SC) 649 he contends that since the delay in lodging the F.I.R. has not been explained, therefore, prosecution of applicant itself cannot be maintained. It is next contended that parties were in consensual relationship but the F.I.R. was lodged with delay, the same cannot be maintained. He submits that the prosecutrix is a willing and consenting party. The prosecutrix herself willingly joined the applicant and thereafter accompanied with applicant, As such, no offence under Sections 366 I.P.C. can be said to have been committed by applicant as neither the prosecutrix was enticed away, abducted nor kidnapped by the applicant. It is also contended that physical relationship between the parties was established upon the consent of the prosecutrix. As such, modesty of the prosecutrix was not dislodged by applicant forcibly or deliberately. Consequently, no offence under Section 376 I.P.C. and 3/4 POCSO Act is made out against applicant.

¶9Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 21.06.2023. As such, he has undergone more than three and a half months of incarceration. The police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystalyzed. Upto this stage, no such circumstance has merged on the basis of which it can be said that the custodial arrest of applicant is absolutely necessary during the pendency of trial. He therefore submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial

¶10Per contra, the learned A.G.A. for State has vehemently opposed the prayer for bail. He submits that since the applicant is a named as well as charge-sheet accused, therefore he does not deserve any indulgence by this Court. The prosecutrix is below 18 years of age. Consequently, her consent is wholly immaterial. As a result the provisions of section 376 I.P.C. and Section 3/4 POCSO Act are squarely attracted against applicant. He therefore submits that no sympathy be shown by this Court in favour of applicant. However, he could not dislodged the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶11Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that prosecutrix is a willing and consenting party, the prosecutrix herself came to the applicant and joined him, as such, no offence under Sections 366 I.P.C. can be said to have been committed by applicant as neither the prosecutrix was kidnapped nor abducted by the applicant, physical relationship between the parties was established upon the consent of the prosecutrix, as such, modesty of the prosecutrix was not dislodged by applicant forcibly or deliberately, therefore no offence under Section 376 I.P.C. and 3/4 POCSO Act can be said to have been committed by applicant, the prosecutrix is major as per date of birth recorded in High School Certificate is 04.03.2004 the clean antecedents of applicant, the period of incarceration undergone by applicantm police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallized, in spite of above, learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to present applicant for bail, but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

¶12Accordingly, present application for bail is allowed.

¶13Let the applicant-Ajay Kumar @ Shriram involved in aforesaid case crime number be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) Applicant will not tamper with prosecution evidence.

(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) Applicant will not indulge in any unlawful activities.

(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

¶14The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison Order Date :- 16.10.2023 YK High Court of Judicature at Allahabad