Kuldeep @ Chhotu v. State of U.P. Thru. the Prin. Secy. Home, Civil Sectt. Lko. and Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12161 of 2023 Applicant :- Kuldeep @ Chhotu Opposite Party :- State Of U.P. Thru. The Prin. Secy. Home, Civil Sectt. Lko. And Others Counsel for Applicant :- Anil Kumar Singh Counsel for Opposite Party :- G.A.,Amit Ranjan Mishra Hon'ble Brij Raj Singh,J.

¶1Heard learned counsel for the applicant and Sri G.D. Bhutt, learned A.G.A.-1 for the State.

¶2The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.305 of 2023 under Sections 363, 366, 376 IPC & 5 (J)2/6 POCSO Act, Police Station Kotwali City, District-Hardoi.

¶3Learned counsel for the applicant has invited attention of this Court towards the statement of the prosecutrix recorded under section 164 Cr.P.C. in which she deposed before the court that she was in love with the applicant and she had gone alongwith him and physical relation was established by her out of her free will. She further deposed that she had performed marriage with the applicant. He has also invited attention of this Court towards the ossification test which indicates that prosecutrix was 17 years of age and the benefit of two years outer age limit may be extended to the applicant inferring that the prosecutrix was major at the relevant time. He further submitted that it is a case of consent. The applicant has no previous criminal history and there is no possibility of fleeing away from the judicial process or tempering with the witnesses and in case, the applicant is enlarged on bail, he shall not misuse the liberty of bail.The applicant is in jail since 21.05.2023.

¶4Learned A.G.A. has opposed the prayer for bail and has submitted that as per the medical report, the girl was minor at the relevant time, therefore, the bail application of the applicant is liable to be rejected.

¶5Without expressing any opinion on the merits of the case and after hearing learned counsel for the parties and looking into overall facts and circumstances of the case as well as the argument that it is a case of consent and the age of the prosecutrix was 17 years and and the benefit of two years outer age limit may be extended to the applicant inferring that the prosecutrix was major at the relevant time, therefore, I am of the opinion that the applicant is entitled to be released on bail.

¶6Let the applicant, namely, Kuldeep @ Chhotu, 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 sufficient cause, the trial court may proceed against him 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 sufficient 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. It 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 :- 17.11.2023 dk/ High Court of Judicature at Allahabad, Lucknow Bench