Akash v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11319 of 2023 Applicant :- Akash Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Others Counsel for Applicant :- Amit Kumar Awasthi,Anand Kumar Shukla 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.

¶2Rejoinder afÏdavit filed by learned counsel for applicant is taken on record.

¶3Heard Shri Amit Kumar Awasthi, learned counsel for the applicant as well as Shri Arun Kumar Verma, learned A.G.A. for the State and perused the record.

¶4This bail application has been filed seeking release of the accused/applicant Akash on bail, who is involved in Case Crime No. 166 of 2023 under Sections 363, 366, 376 I.P.C and Section 3/4 POCSO Act, Police Station Pasgawan, District Kheri.

¶5Learned counsel for applicant has drawn attention of the Court towards the statement of prosecutrix recorded under Section 164 Cr.P.C, wherein she has stated that the applicant came to her house and took her along with him to Ghaziabad where she stayed with him for three days. She further deposed before the Court that the applicant had established physical relation with her out of her free will. Learned counsel for applicant has invited attention of the Court towards the Radiological Report, which indicates the age of prosecutrix between 15 to 17 years. He further submitted that the upper age limit benefit (of two years) may be granted to the applicant and it may be inferred that the at the relevant time, the prosecutrix was major. He further stated that as per school certificate, the age of the prosecutrix is 16 years, 10 months and 3 days, but her age as per medical report is otherwise. He further stated that the applicant and the prosecutrix were studying in the same school and it is a case of consent and not a case of rape and the applicant has been falsely implicated in the present case.

¶6Learned counsel for the applicant further stated that there is no previous criminal history of the applicant and he is languishing in jail since 17.05.2023.

¶7Learned A.G.A has opposed the prayer of bail of the applicant and has submitted that as per school records, the prosecutrix is below 18 years of age, and even if it is a case of consent, consent of a minor has no meaning in the eyes of law and the act of applicant is coming under the purview of rape, therefore, bail is liable to be rejected.

¶8Considering 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 statement of prosecutrix recorded under Section 164 Cr.P.C clearly indicates that she was in love with the applicant and physical relation was established between them out of free will, the argument that it is a case of consent, I find it to be a fit case for grant of bail.

¶9Accordingly, the bail application is allowed.

¶10Let the applicant Akash 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.

¶11It 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 :- 28.10.2023 DiVYa High Court of Judicature at Allahabad, Lucknow Bench