Dinesh v. State of U.P. Thru. Prin. Secy. Home, Lko. and Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10832 of 2023 Applicant :- Dinesh Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Others Counsel for Applicant :- Ambica Tripathi Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.

¶1Heard Shri Ambica Tripathi, learned counsel for the applicant, Shri Ranvijay Singh, learned AGA for the State and perused the record. Though service has been served sufÏciently, none has appeared on behalf of complainant.

¶2The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.227 of 2022, under Sections 363, 366, 376 I.P.C., and 3/4 POCSO Act, Police Station Kachhauna, District Hardoi.

¶3It is contended by learned counsel for the applicant that the prosecutrix in her statement 164 Cr.P.C. has deposed that she was in love with the applicant which was opposed by her family members. She deposed that on 10.06.2022 at 11 o'clock in the night, she had left her house alone and gone with the applicant and remained with him for four days. She also deposed that physical relation was established out of her free will and no forceful act was done by the applicant.

¶4Learned counsel submitted that as per medical report, the age of the prosecutrix is 17 years and 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 14.06.2022.The medical report also does not support the prosecution case as the doctor has opined that no definite opinion about rape could be given.

¶5Learned AGA opposed the prayer for bail and submitted that the prosecutrix was minor at the relevant time therefore, physical relation established by her has no meaning hence, it is coming within the purview of rape and bail is liable to be rejected.

¶6Without expressing any opinion on the merits of the case, after hearing learned counsel for the parties, considering the argument of consent; argument that statement of the proseuctrix under Sectiion 164 Cr.P.C. indicates that she had gone along with the applicant on her free will and established physical relations therefore, I am of the opinion that the applicant is entitled to be released.

¶7Let the applicant, Dinesh 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 :- 6.12.2023 Pks High Court of Judicature at Allahabad, Lucknow Bench