Sumit Kumar v. State of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko and 4 Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10699 of 2023 Applicant :- Sumit Kumar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko And 4 Others Counsel for Applicant :- Arvind Pratap Singh,Dushyant 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 before the Court.

¶2Heard Shri Dushyant Singh, learned counsel for the applicant as well as Shri Vinod Yadav, learned A.G.A. for the State and perused the record.

¶3This bail application has been filed seeking release of the accused/applicant Sumit Kumar on bail, who is involved in Case Crime No. 33 of 2023 under Sections 363, 376 I.P.C and Section 3/4 POCSO Act, Police Station Baskhari, District Ambedkar Nagar.

¶4Learned counsel for the applicant has drawn attention of the Court towards the statement of the prosecutrix recorded under Section 164 Cr.P.C, wherein it is mentioned that the applicant was known to her for the last one year and she was in love with him. She has further deposed in her statement that on 11.02.2022, she was taken to Zoo by the applicant and thereafter, he took her to a hotel where physical relation was established by him without her consent. She further deposed that for three days, she remained in the Hotel and physical relation was established against her will.

¶5Learned counsel for applicant submitted that as per radiological report, the age of prosecutrix is in between 17 to 18 years, thus she was major at the relevant time. He further submitted that the prosecutrix did not raise any alarm and she remained with the applicant for three days in the hotel, which clearly indicates that it is a case of consent and there are no ingredients of Section 375 I.P.C. After looking into the statement of prosecutrix recorded under Section 164 Cr.P.C, it can be inferred she is a consenting party and no offence is made out against the applicant. Learned counsel for the applicant further stated that there is no previous criminal history of the applicant and he is languishing in jail since 03.05.2023.

¶6Learned A.G.A has opposed the prayer of bail of the applicant and has submitted that as per the statement of prosecutrix recorded under Section 164 Cr.P.C, allegation of rape has been levelled against the applicant. He further submitted that as per school certificate, the date of birth of prosecutrix is 16.07.2006 and at the relevant time, the age of prosecutrix was 16 years and she was minor, therefore 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 as per Radiological Report, the age of the prosecutrix is about 18 years, the argument that the prosecutrix remained with the applicant in the hotel for three days without raising any objection or alarm which indicate that it is a case of consent, I find it to be a fit case for grant of bail.

¶8Accordingly, the bail application is allowed.

¶9Let the applicant Sumit Kumar 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 :- 18.10.2023 DiVYa High Court of Judicature at Allahabad, Lucknow Bench