Santosh Yadav @ Shiv Prasad Yadav v. State of U.P. Thru. Secy. Deptt. of Home, Lko. and Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 390 of 2023 Applicant :- Santosh Yadav @ Shiv Prasad Yadav Opposite Party :- State Of U.P. Thru. Secy. Deptt. Of Home, Lko. And Others Counsel for Applicant :- Dinesh Kr. Chaudhary,Alok Singh,Maharaj Baksh Singh Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.

¶1Notice has been served upon opposite party no. 2, but none is present on his behalf.

¶2Heard Shri Maharaj Baksh Singh, learned counsel for the accused-applicantas well as Shri Bipul Kumar Singh, Brief Holder for the State and perused the record.

¶3This bail application has been filed seeking release of the accused/applicant Santosh Yadav @ Shiv Prasad Yadav on bail, who is involved in Case Crime No. 114 of 2022 under Sections 363, 376 I.P.C and Section 3/4 POCSO Act and Section-3(2)(V) S.C/S.T Act, Police Station Gaura Chauraha, District Balrampur.

¶4Learned counsel for the applicant has invited attention of the Court towards the statement of prosecutrix recorded under Section 164 Cr.P.C, wherein she has deposed that she was called by one Pushpa in the morning of 4 O'Clock and she had gone alongwith her to ease out from where she was forcibly taken by the applicant on his motorcycle, thereafter, she was kept in one room and was sexually assaulted by the applicant. Learned counsel for applicant further submitted that the prosecutrix never raised any alarm, which indicates that she was a consenting party. He further submitted that the medical report has been filed along with the counter afÏdavit and as per Medical Board, the age of the prosecutrix is 18 years. He has further mentioned in paragraph 11 of the bail application that since prosecutrix refused for internal examination, at the moment, it cannot be inferred that the applicant has committed any offence, rather, it is a case of consent.

¶5Learned counsel for the applicant further stated that there is no previous criminal history of the applicant and he is languishing in jail since 04.10.2022.

¶6Learned A.G.A has opposed the prayer of bail of the applicant and has submitted that statement of prosecutrix under Section 164 Cr.P.C indicates that the applicant committed sexual offence against the prosecutrix, therefore, the bail is liable to be rejected.

¶7Considering the facts and circumstances of the case, perusing the record, also considering the nature of allegations, arguments advanced by the learned counsel for the parties, the argument that it is a case of consent, the argument that prosecutrix refused for medical examination, the argument that as per medical report, the age of the prosecutrix is 18 years, I find it to be a fit case for grant of bail.

¶8Accordingly, the bail application is allowed.

¶9Let the applicant Santosh Yadav @ Shiv Prasad Yadav be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when 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.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufÏcient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) 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 absence of the applicant is deliberate or without sufÏcient 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.

¶10It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order. Order Date :- 11.10.2023/DiVYa High Court of Judicature at Allahabad, Lucknow Bench