Matadeen Prajapati v. State of U.P. and 3 Others

Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53077 of 2023 Applicant :- Matadeen Prajapati Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ram Sumer Chaudhary,Manju Lata Verma 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 upon the informant on 05.12.2023. Despite service of notice, none present on behalf of the informant.

¶2Heard Sri R.S. Chaudhary and Ms. Manju Lata Verma, learned counsels for the applicant and Sri Imran Khan, learned AGA for the State.

¶3The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 147 of 2023, under Sections 363, 366, 376 IPC, Section 3/4 POCSO Act and Section 3(2)(5) SC/ST Act, Police Station Kotwali Dehat, District Banda during pendency of the trial.

¶4FIR of the present case was lodged against unknown persons and according to the FIR daughter of the informant aged about 17 years had gone somewhere from home.

¶5Learned counsel for the applicant submitted that during investigation applicant was made accused in the present matter and from the statements of the victim recorded under Sections 161 Cr.P.C and 164 Cr.P.C. it is apparent that she herself had gone along with applicant.

¶6He next submits that as per school record the age of the victim at the time of incident was about 16 years but actually she was major and intentionally during investigation her ossification test was not conducted. He further submits that even appearance wise victim looks like a major girl. 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 24.07.2023.

¶7Per contra, learned AGA opposed the prayer for bail and submits that as per school record victim was about 16 years old, therefore, her consent is immaterial but could not dispute the fact that during investigation her ossification test was not conducted.

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

¶9However, as per school record at the time of incident victim was about 16 years old but during investigation her ossification test was not conducted. Further, 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, therefore, from her both the statements it appears that it is a case of love affair, therefore, defence taken by the applicant cannot be completely ruled out at this stage.

¶10Further, argument advanced by learned counsel for the applicant that even appearance wise victim looks like a major girl cannot be completely brushed aside at this stage too.

¶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 application 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 24.07.2023.

¶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 -Matadeen Prajapati 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 :- 12.12.2023 AK Pandey High Court of Judicature at Allahabad