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

Court No. - 71 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13519 of 2023 Applicant :- Devesh Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sanjay Kumar Pandey, Sr. Advocate Counsel for Opposite Party :- G.A.,Sunil Kumar Srivastava Hon'ble Shekhar Kumar Yadav,J.

¶1At the very outset, learned AGA has raised a preliminary objection regarding maintainability of the present application and has stated that there is death penalty under POCSO Act.

¶2Heard Mr. Kamal Krishna, learned Senior Counsel assisted by Mr. Sanjay Kumar Pandey, learned counsel for the applicant, learned Additional Government Advocate for the State and Mr. Sunil Kumar Srivastava, learned counsel for the informant.

¶3This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No.422 of 2023, under Sections 363, 366, 376-DA, 506 IPC and Section 5/6 POCSO Act, Police Station Chiluwa Tal, District Gorakhpur.

¶4Learned counsel for the applicant submits that applicant has been falsely implicated in the present case just to harass the applicant in fact no such incident has taken place as alleged in the impugned FIR. The applicant has never committed any offence as alleged in the impugned FIR The applicant is about 17 years and is a student of class-11. Copy of mark sheet is annexed as Annexure No.13 to the affidavit. He further submits that the victim herself has stated in her statement recorded under Section 164 Cr.P.C. that she was having love affairs with applicant-Devesh and she went with applicant on her own sweet will and has also made physical relation with him. He further submits that there are material contradictions in the statement of the victim. The victim has refused for her internal and external examination. He further submits that since the victim has levelled allegation of physical relation against applicant, no offence under Section 376-DA is made out. He further submits that so far as death penalty under POCSO Act is concerned, the same shall not be applied in the present case because the applicant himself is a minor. The applicant is having no previous criminal history as has been mentioned in paragraph 27 of the affidavit. He further submits that applicant has apprehension of imminent arrest and in case, the applicant is released on anticipatory bail, he will not misuse the liberty and would co-operate with the trial.

¶5Learned A.G.A. as well as learned counsel for the informant vehemently opposed the prayer for anticipatory bail of the applicant but could not dispute the aforesaid contentions raised by learned counsel for the applicant.

¶6Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, he is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi) 2020 SCC Online SC

¶98The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

¶7In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant-Devesh Kumar, involved in the aforesaid case crime be released on anticipatory bail till conclusion of trial on furnishing a personal bond of Rs.50,000/-with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-

(i) The applicant shall co-operate with the Investigating Officer during investigation and shall report to the Investigating Officer as and when required for the purpose of conducting investigation.

(ii) The applicant shall not, directly or indirectly, make any 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 to any police officer.

(iii) The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.

(iv) The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned Court.

(v) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.

(vi) In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi) 2020 SCC Online SC

98.

(vii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against his in accordance with law.

¶8In default or misuse of any of the conditions, the Public Prosecutor/ Investigating Officer/ first informant-complainant is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.

¶9With the aforesaid observations/ directions, the application is disposed of. Order Date :- 7.12.2023 Ajeet High Court of Judicature at Allahabad