Shivam @ Shiva v. State of U.P. Thru. Secy. Deptt. of Home, Lko. and Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2099 of 2023 Applicant :- Shivam @ Shiva Opposite Party :- State Of U.P. Thru. Secy. Deptt. Of Home, Lko. And Others Counsel for Applicant :- Ram Chandra Dwivedi,Rajat Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.

¶1Heard Shri Udai Pratap Singh, Advocate holding brief of Shri Ram Chandra Dwivedi, learned counsel for the applicant, Shri MVS Chauhan, learned AGA for the State and perused the record. No body is present on behalf of the complainant though notice has been served.

¶2The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.308 of 2021, under Sections-363, 366, 376 I.P.C. and Section 5J(ii)/6 POCSO Act., P.S.- Bangarmau, District Unnao.

¶3Learned counsel for the applicant has invited attention of the Court towards the statement recorded under Section 164 Cr.P.C. in which prosecutrix has deposed that she had gone along with the applicant to Panipat out of her free will and nothing wrong has been done by the applicant. She further deposed that marriage was performed and she remained with the applicant as his wife and she became pregnant.

¶4Learned counsel for the applicant submitted that as per ossification text, the prosecutrix is 17 years. He submitted that it is a case of consent and not a case of rape as such benefit of upper age limit of two years may be extended and it may be inferred that the prosecutrix was major at the relevant time. The applicant has no criminal history. The applicant is in jail since 16.04.2022.

¶5Learned AGA opposed the prayer for bail and submitted that as per school certificate, the age of the prosecutrix is below 16 years and physical relation which was made is not coming within the meaning of consent, thus the bail of the applicant is liable to be rejected.

¶6Without expressing any opinion on the merits of the case and after hearing learned counsel for the parties and considering the nature of FIR, argument of consent, argument that as per ossification test, the age of prosecutrix is 17 years ; argument that two years benefit of upper age limit may be extended and it may be inferred that the prosecutrix was major at the relevant time, thus, in my opinion, I find it to be a fit case for bail.

¶7Let the applicant, Shivam @ Shiva, 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 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 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.

¶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 :- 8.12.2023 Pks High Court of Judicature at Allahabad, Lucknow Bench