Anil Kumar @ Anil Bhagat v. State of U.P. and 3 Others

Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51560 of 2023 Applicant :- Anil Kumar @ Anil Bhagat Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Abhishek Gupta,Suresh Kumar Maurya Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.

¶1Sri Imran Khan, learned AGA, for the State, apprised the Court that notice has been served to the informant of the case on

26.11.2023.

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

¶3Heard Sri Suresh Kumar Maurya, learned counsel for the applicant and Sri Imran Khan, learned AGA, 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.182 of 2023, under Sections 363, 366A, 376, 504 and 506 IPC and Section 6 POCSO Act, Police Station Mau, District Chitrakoot during pendency of the trial.

¶5FIR of the present case was lodged against the applicant and one another and according to the FIR, applicant and other nominated accused enticed away the daughter of the informant aged about 15-16 years on 14.1.2023.

¶6Learned counsel for the applicant submits that entire allegation made against the applicant is totally false and baseless and this fact is itself evident from the FIR of the present case.

¶7He further submits that FIR of the present case was lodged on

5.8.2023, i.e., after about seven months from the date of alleged enticement through an application under Section 156(3) Cr.P.C. and even application under Section 156(3) Cr.P.C. was moved after several months and this inordinate delay in lodging the FIR shows that a false story has been cooked up by the informant and implicated the applicant.

¶8He further submits that when the statement of the victim was recorded under Sections 161 and 164 Cr.P.C. then she stated that she herself had gone along with applicant and has also performed marriage with him.

¶9He further submits that victim in her statement under Section 161 Cr.P.C. disclosed her age as 19 years.

¶10He further submits that however, as per school record of the victim, she is about 15 years old but actually she is major aged about 18 years and intentionally during investigation her ossification test was not conducted.

¶11He further submits that even appearance wise victim looks like major girl.

¶12He 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 26.9.2023.

¶13Per contra, learned AGA opposed the prayer for bail and submits that as per school record victim was hardly 15 years old at the time of incident and therefore, her consent is immaterial but he could not dispute the fact that during investigation ossification test of the victim was not conducted and victim in her both the statements recorded during investigation stated that she herself had gone along with the applicant and had also performed marriage with him.

¶14I have heard learned counsel for the parties and perused the record of the case.

¶15However, as per the school record of the victim, she was about 15 years old at the time of incident but during investigation her ossification test was not conducted.

¶16Further, victim in her both the statements recorded under Sections 161 and 164 Cr.P.C. did not make any allegation against the applicant and categorically stated that she was having love affair with the applicant and when this fact was revealed to her family members then they turned her out from the house and thereafter she had gone along with applicant and also performed marriage with him, therefore, it appears to be case of love affair.

¶17The object behind the POCSO Act is to protect a child from sexual abuse and not to punish an accused for love affair. .

¶18Further, in my considered view, by ignoring the statements of the victim recorded during investigation in such matters like present one, bail application of an accused should not be dismissed.

¶19Further, law is settled that bail application should not be dismissed either for punitive or preventive purposes.

¶20Further, applicant is not having any previous criminal history and in the present matter he is in jail since 23.9.2023

¶21Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

¶22Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

¶23Let the applicant-Anil Kumar @ Anil Bhagat 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.

¶24In 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.

¶25It 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 :- 2.12.2023 SKM High Court of Judicature at Allahabad