Arun Kumar v. State of U.P. Thru. Prin. Secy. Home Deptt. Civil Secrt. Lko. and Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13395 of 2023 Applicant :- Arun Kumar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Civil Secrt. Lko. And Others Counsel for Applicant :- Raghunath Prasad 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 Raghunath Prasad, learned counsel for the applicant as well as Shri Vishwas Saraswat, learned A.G.A. for the State and perused the record.

¶3This bail application has been filed seeking release of the accused/applicant Arun Kumar on bail, who is involved in Case Crime No. 166 of 2023 under Sections 363, 366, 376(3) I.P.C and Section 5(L)/6 POCSO Act, Police Station-Arwal, District-Hardoi.

¶4Learned counsel for the applicant submitted that the prosecutrix, in her statement recorded under Section 164 Cr.P.C, has deposed that she established physical relation with the applicant out of her own free will. She further deposed that on 24.04.2023, she had gone along with the applicant and remained with him and established physical relation with him. Learned counsel for applicant further submitted that as per Ossification test, the age of the prosecutrix is 19-20 years and she is major. Though, as per school certificate, the prosecutrix is below 16 years of age but the medical report indicates that she is major.

¶5Learned counsel for applicant submitted that after looking into the statement of prosecutrix, it can be inferred that it is a case of consent and no offence is made out against the applicant. He further submitted that the applicant has been falsely implicated and in the present case, there are no ingredients of Section 375 I.P.C. Learned counsel for the applicant further stated that there is no previous criminal history of the applicant and he is languishing in jail since 15.05.2023.

¶6Learned A.G.A has opposed the prayer of bail of the applicant and has stated that on the basis of school certificate, the prosecutrix is minor, but he could not dispute the fact that the prosecutrix has not supported the prosecution case in her statement under Section 164 Cr.P.C.

¶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 it is a case of consent, the argument that the prosecutrix, in her statement under Section 164 Cr.P.C has admitted that she established physical relation with the applicant on her own free will, the argument that as per medical report, the age of of prosecutrix is 19-20 years and she is major, I find it to be a fit case for grant of bail.

¶8Accordingly, the bail application is allowed.

¶9Let the applicant Arun 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 :- 14.12.2023/DiVYa High Court of Judicature at Allahabad, Lucknow Bench High Court of Judicature at Allahabad, Lucknow Bench