Parmanand v. State of U.P.And 3 Others

Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50258 of 2023 Applicant :- Parmanand Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Azad Khan Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.

¶1Sri Jhamman Ram, learned AGA-I for the State apprised the Court that notice has been served upon the informant on

20.11.2023. Despite service of notice none present on behalf of the informant.

¶2Heard Sri Azad Khan, learned counsel for the applicant and Sri Jhamman Ram, learned AGA-I for the State.

¶3The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 75 of 2023, under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act, Police Station Shahjahanpur, District Jhansi during pendency of the trial.

¶4FIR of the present case was lodged against two unknown persons under Section 363 IPC and according to the FIR two unknown persons enticed away the daughter of the informant aged about 17 years.

¶5Learned counsel for the applicant submitted that when the statement of the victim under Section 161 Cr.P.C. was recorded then applicant was made accused in the present matter. He further submits that victim in her both the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. categorically stated that she herself had gone along with applicant and also performed marriage with him. He further submits that even informant and victim disclosed her age around 17 years and as per school record also she was around 17 years old.

¶6He further submits that intentionally during investigation the ossification test of the victim was not conducted as victim is major girl and even appearance wise also she looked like a major girl aged about 18 years. He further submits that it is a case of love affair and applicant is not having any criminal history and in the present matter he is in jail since 17.08.2023.

¶7Per contra, learned AGA opposed the prayer for bail and submitted that as per school record victim was 16 years and 8 months old at the time of incident, therefore, her consent is immaterial but could not dispute the fact that during investigation the ossification test of the victim was not conducted and during investigation victim stated that she herself had gone along with applicant and also performed marriage with him.

¶8I have heard learned counsel for the parties and perused the record of the case.

¶9However, from the school record, it reflects that at the time of incident victim was about 16 years 8 months old but even as per informant and victim herself she was about 17 years old. Further, during investigation ossification test of the victim was not conducted.

¶10Further, victim in her both the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. stated that she herself had gone along with applicant and also performed marriage with the applicant.

¶11The object behind POCSO Act is to protect the child from sexual abuse and not to punish the accused for love affair. In my view, by ignoring the statements of the girl (victim) recorded during investigation in the cases like present one, the bail of an accused should not be dismissed.

¶12Further, the law is settled that bail should not be dismissed either for punitive or preventive purpose.

¶13Further, applicant is not having any criminal history and in the present matter he is in jail since 17.08.2023.

¶14Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

¶15Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

¶16Let the applicant -Parmanand 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.

¶17In 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.

¶18It 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 :- 1.12.2023 AK Pandey High Court of Judicature at Allahabad