Shahrukha v. State of U.P. and 3 Others

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44227 of 2023 Applicant :- Shahrukha Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sanjive Kumar Gupta Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J. Shri Suchit Tandon, learned AGA 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. 289 of 2019 at Police Station-Alapur, District-Budaun under Sections 363, 366-A, 376(3) IPC and Section 3/4(2) of the POCSO Act. The applicant is in jail since 15.06.2023. The bail application of the applicant was rejected by the learned trial court on 13.07.2023. The following arguments made by Shri Sanjive Kumar Gupta, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Ms. Gunjan Sharma, learned counsel on behalf of the victim as part of the free legal aid granted by the High Court Legal Services Committee upon recommendation of the Child Welfare Committee and Shri Suchit Tandon, learned AGA from the record, entitle the applicant for grant of bail:

¶1Learned counsel for the applicant contests the minority of the victim as depicted in the prosecution case.

¶2The victim was wrongly shown as a minor of 15 years of age in the F.I.R. only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.

¶3Learned counsel for the applicant contests the age of the victim set out in the prosecution case in light of the judgement of this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021) on the following grounds:

(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.

(ii) The victim in her statements under Section 161 and 164 Cr.P.C. has asserted that she is 15 years of age.

(iii) Medico-legal examination (not the age determination test) records that the victim is 18 years of age.

(iv) The medical report drawn up as per the latest scientific criteria and medical protocol to determine the age of the victim opines that she is 18 years of age. The victim is in fact a major.

¶4The victim and the applicant were intimate.

¶5The victim has repudiated the prosecution case in her testimony before the trial court. She has admitted to intimacy with the applicant. She has been declared hostile at the instance of the prosecution.

¶6The victim has denied the commission of rape by the applicant with her.

¶7The applicant does not have any criminal history apart from this case.

¶8The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending. 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-Shahrukha 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. The Court has noticed that the trial court has not only affixed the photograph of POCSO victim but has also disclosed her name in the order. The trial proceedings are liable to be anonymized under the POCSO Act. All POCSO Courts are liable to follow the law in this regard in a strict fashion. A copy of this order be placed before the Hon'ble POCSO Committee, High Court. Order Date :- 17.10.2023 Vandit High Court of Judicature at Allahabad