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

Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48950 of 2023 Applicant :- Sonu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rakesh Kumar Verma Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.

¶1Sri Ajeet Madheshiya, learned Brief Holder, for the State, apprised the Court that notice has been served to the informant of the case on 10.11.2023.

¶2Despite service of notice, none appeared on behalf of the informant.

¶3Heard Sri Rakesh Kumar Verma, learned counsel for the applicant Sri Ajeet Madheshiya,, learned Brief Holder, for the State.

¶4The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail in Case Crime No.383 of 2023, under Sections 363, 366 and 376 IPC and Section 3/4 POCSO Act, Police Station Bilari, District Moradabad during pendency of the trial.

¶5FIR of the present case was lodged against the applicant and according to the FIR, applicant enticed away the daughter of the informant aged about 16 and 1/2 years.

¶6Learned counsel for the applicant submits that entire allegation made against the applicant is totally false and baseless and this fact is evident from both the statements of the victim recorded under Sections 161 and 164 Cr.P.C.

¶7He further submits that even as per school record victim was about 16 and 1/2 years old at the time of incident and it appears that she was about 18 years old and, therefore, during investigation intentionally her ossification test was not conducted.

¶8He further submits that even appearance wise victim looks like major girl.

¶9He further submits that it is a case of love affair and applicant is not having any previous criminal history and in the present matter he is in jail since 18.9.2023.

¶10Per contra, learned Brief Holder opposed the prayer for bail and submits that as per school record victim was about 16 and 1/2 years old and therefore, her consent is immaterial but he could not dispute the fact that victim in her both the statements recorded under Sections 161 and 164 Cr.P.C. stated that she herself had gone along with applicant and she loved the applicant. Learned Brief Holder further could not dispute the fact that during investigation ossification test of the victim was not conducted.

¶11I have heard learned counsel for the parties and perused the record of the case.

¶12However, from the school record it appears that at the time of incident victim was about 16 and 1/2 years but during investigation her ossification test was not conducted.

¶13Further, from the statement of the victim recorded under Sections 161 and 164 Cr.P.C. it appears that she categorically stated that she herself had gone along with applicant and she loved the applicant and, therefore, it appears to be a case of love affair.

¶14The object behind the POCSO Act is to protect a child from sexual abuse and not to punish the lovers for love affair.

¶15In my view, by ignoring the statements of the victim recorded during investigation in cases like present one it is not proper to dismiss the bail application of applicant.

¶16Further, law is settled that bail application should not be dismissed either for punitive or preventive purposes.

¶17Further, applicant is not having any previous criminal history and in the present matter he is in jail since 18.9.2023.

¶18Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

¶19Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

¶20Let the applicant-Sonu be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.

(ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence.

(iii) The applicant shall not indulge in any criminal and anti-social activity.

¶21In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

¶22It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 29.11.2023 SKM High Court of Judicature at Allahabad