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

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45338 of 2023 Applicant :- Deepak Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ashok Kumar Mishra,Santosh Prakash Pandey Counsel for Opposite Party :- G.A.,Bhiya Vikash Bharti,Dewarshi Kumar Rai Hon'ble Samit Gopal,J.

¶1List revised.

¶2Sri Dewarshi Kumar Rai, Advocate states that he has filed his vakalatnama in the office on behalf of the first informant on

26.10.2023 but the same is not on record.

¶3Office is directed to trace out the same and place it on record.

¶4Heard Sri Ashok Kumar Mishra, learned counsel for the applicant, Sri Dewarshi Kumar Rai, learned counsel for the first informant, Sri Ram Prakash Shukla, learned counsel for the State and perused the material on record.

¶5This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Deepak Kumar, seeking enlargement on bail during trial in connection with Case Crime No.31 of 2023, under Sections 376, 506 IPC and 3/4 POCSO Act, registered at Police Station Kalyanpur, District Kanpur Nagar.

¶6The FIR of the matter was lodged on 27.1.2023 by the victim herself against the applicant alleging therein that he had allured her on promise to marry after getting employment and committed rape upon her since the year 2017. In the year 2018, he got employment in the police department after which he was asked by her to marry to which he started avoiding it. She has come to know that the applicant has married to some other girl on 25.11.2022. The FIR be thus lodged.

¶7Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the FIR was lodged under Sections 376, 506 IPC and 3/4 POCSO Act in spite of the fact that the victim had disclosed her age to be 21 years therein. While placing para no.13 of the affidavit, it is argued that as a matter of fact Nisha Devi and the victim were friends and are relatives studying in the same class. Nisha Devi was having friendship with the applicant before her marriage and she has married with the applicant and when the victim got annoyed of the marriage with Nisha Devi, she has lodged present FIR. It is argued that the applicant during the period of investigation challenged the FIR along with prayer for staying of arrest before this Court in Criminal Misc. Writ Petition No.2402 of 2023 (Deepak Kumar Vs. State of U.P. and 2 others) in which Division Bench of this Court vide order dated 13.02.2023 directed that the applicant shall not be arrested till the next date of listing or till submission of police report under Section 173(2) Cr.P.C., copy of the same is annexed as Annexure No.6 to the affidavit filed in support of bail application. It is argued that the victim as per her High School Certificate is having her date of birth 15.09.2001 and as such she is aged about 21 years and a major. It has also been pointed out that the applicant is not having any criminal history as stated in para 18 of the affidavit and is in jail since 25.8.2023.

¶8Per contra learned counsel for the first informant and learned counsel for the State vehemently opposed the prayer for bail and argued that the victim at the time of incident i.e. in the year 2017 was aged about 16 years and was a minor. It is argued that the applicant is named in the FIR, in the statement of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C and role has been assigned to him. The applicant had assaulted the victim and her family members regarding which a FIR was lodged as Case Crime No.388 of 2023 under Sections 147, 323, 506 IPC, Police Station Kalyanpur, District Kanpur Nagar by the victim herself. The applicant had challenged the proceedings of the present case after submission of charge sheet and cognizance but the said petition was dismissed vide order dated 10.8.2023 passed in Application U/S 482 No.29317 of 2023 (Deepak Kumar Vs. State of U.P. and another) passed by coordinate Bench of this Court, copy of the said order has been produced by learned counsel for the applicant, the same is taken on record.

¶9After hearing the counsel for the parties and perusing the record, it is evident that the victim at the time of incident was a minor girl. The applicant is named in the FIR, in the statement of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C and role has been assigned to him. The applicant is employed in the police department as such there are good chances of his tempering with the evidence.

¶10Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected. (Samit Gopal, J.) Order Date :- 28.10.2023 Gaurav Kuls High Court of Judicature at Allahabad High Court of Judicature at Allahabad