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

Court No. - 72 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51144 of 2023 Applicant :- Tuntun Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Dhiraj Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J.

¶1List has been revised.

¶2Heard Sri Dheeraj Kumar Pandey, learned counsel for the applicant, Sri Pankaj Kumar, learned A.G.A. for the State and perused the material placed on record.

¶3Applicant seeks bail in Case Crime No. 471 of 2022, under Sections 363, 366-A IPC and Section 7/8 POCSO Act, Police Station Meja, District Prayagraj, during the pendency of trial.

¶4As per prosecution case, an FIR was instituted by informant at Police Station Meja district Prayagraj, alleging that his daughter had gone to ease herself out on 07.08.2022 at 03:00 am and has not returned.

¶5Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. FIR is delayed by 8 days and there is no explanation of the said delay. He has further stated that victim has categorically stated in her statement recorded under Section 164 CrPC that she had gone at the calling of Pushpendra and his brother. She has further stated that co-accused Pushpendra called her and had told that the applicant Tuntun shall take her to Bhagalpur, Bihar whereby, the applicant had taken her but Pushpendra did not turn up, who is resident of Vapi.

¶6Learned counsel has stated that even in the statement recorded under Section 164 CrPC she has categorically stated that the applicant has been wrongly languishing in jail.

¶7Learned counsel for the applicant has further stated that as per FIR itself, the victim herein is 17 years old and has placed much reliance on the judgment of Apex Court in Sushil Kumar vs. Rakesh Kumar, (2003) 8 SCC 673, wherein it has been stated that it is more often in the Indian Society that person shows the age of their wards much below their actual age. In the case of Brij Mohan Singh vs. Priya Brat Narain Sinha, AIR 1965 SC 282, this Court, inter alia, observed that in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. It is also settled by Apex Court that as per the medical records, a leverage of two years may be granted to the accused person.

¶8Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. It is further stated that there is no criminal history of the applicant. The applicant is languishing in jail since

24.12.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.

¶9Learned A.G.A. has vehemently opposed the bail application.

¶10Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

¶11Let the applicant-Tuntun Kumar, who is involved in aforementioned case crime 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with evidence.

(ii) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

¶12In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶13It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 30.11.2023 Priya High Court of Judicature at Allahabad