Pinku Alias Tinku v. State of U.P. Thru. Addl. Chief Secy., Deptt. of Home, Lko. and Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12328 of 2023 Applicant :- Pinku Alias Tinku Opposite Party :- State Of U.P. Thru. Addl. Chief Secy., Deptt. Of Home, Lko. And Others Counsel for Applicant :- Anurag Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.

¶1Heard learned counsel for the applicant, of Sri Hari Shankar Maurya, learned A.G.A. for the State and perused record.

¶2The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.0245 of 2023 under Section 363, 366, 376 IPC and 3/4 POCSO Act, PS Sandila, District Hardoi.

¶3Learned counsel for the applicant has drawn the attention of this Court towards the statement under Section 164 CrPC in which the prosecutrix has stated that her age is 19 years and further deposed that she was in love with the applicant and she knew the applicant since three years. She further deposed that she had gone along with the applicant to Delhi on 08.06.2023. Thereafter, he remained in Delhi for nine days and marriage could not be performed because one advocate told her that she was minor. Thereafter, she performed marriage in Durga Temple.

¶4Learned counsel for the applicant has further submitted that her date of birth is 01.01.2003 and it is wrongly mentioned as 01.01.2007 in the school record. He submitted that the ossification test indicates that the Doctor had opined that the age of prosecutrix is 17 to 18 years. He has also stated that she was major at the relevant time and further submitted that it is a case of consent and it appears that both were in love. The applicant has no criminal antecedent. The applicant is liable to be granted bail.

¶5On the other hand, learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts.

¶6Considering the over all facts and circumstances of the case, the argument that statement under Section 164 CrPC is not supporting the prosecution story, the argument that prosecutrix had admitted that she had married with the applicant in a temple and as per the medical report, her age is in between 17 to 18 years, it is a fit case for bail.

¶7Let the applicant, namely, Pinku Alias Tinku 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.

¶8It 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 :- 7.12.2023 Raj High Court of Judicature at Allahabad, Lucknow Bench