The age of the victim is a crucial factor in determining whether an offence under the POCSO Act has been committed.

Court No. - 73

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34311 of 2022

Applicant :- Mool Chandra

Opposite Party :- State Of U.P. And 3 Others

Counsel for Applicant :- Pramod Kumar Srivastava,Shiv Singh

Counsel for Opposite Party :- G.A.,Ratnesh Kumar Mishra

Hon'ble Siddharth,J.

Heard Shri Shiv Singh, learned counsel for the

applicant; Shri Ratnesh Kumar Mishra, learned

counsel for the informant and learned A.G.A.

The instant bail application has been filed on

behalf of the applicant, Mool Chandra, with a

prayer to release him on bail in Case Crime No.

173 of 2021, under Sections 376(D) IPC and 5/6 of

POCSO Act

Police Station Dhata, District-

Fatehpur, during pendency of trial.

The applicant has been implicated for committing

the offence of gang rape against the minor girl.

Learned counsel for the applicant has submitted

that it is a case of false implication. As per

ossification test report of the victim she is aged

about 17 years. Given margin of one year on

higher side, she can be considered to be

major.Applicant is not named in the First

Information Report. In the statement of the victim

under section 164 Cr.P.C. although applicant has

been named by the victim but no role of

committing rape has been assigned to the

applicant.

The applicant is in jail since

27.12.2021 and has no criminal history.

Learned A.G.A. and learned counsel for the

informant have opposed the bail prayer of the

applicant but could not dispute the aforesaid facts.

Keeping in view the nature of the offence,

evidence, complicity of the accused, submissions

of the learned counsel for the parties, larger

mandate of the Article 21 of the Constitution of

India, considering the dictum of Apex Court in the

case of Dataram Singh Vs. State of U.P. and

another reported in (2018) 3 SCC 22 and recent

judgment dated 11.07.2022 of the Apex Court in

the case of Satendra Kumar Antil vs. C.B.I., passed

in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6

times overcrowding in jails over and above their

capacity by the under trials and without

expressing any opinion on the merits of the case,

the Court is of the view that the applicant has

made out a case for bail. The bail application is

allowed.

Let the applicant be released on bail on his

furnishing a personal bond and two sureties each

in the like amount to the satisfaction of the court

concerned subject to following conditions. Further,

before issuing the release order, the sureties be

verified.

1. The applicant shall not tamper with the

prosecution evidence by intimidating/ pressurizing

the witnesses, during the investigation or trial.

2. The applicant shall cooperate in the trial

sincerely without seeking any adjournment.

3. The applicant shall not indulge in any criminal

activity or commission of any crime after being

released on bail.

4. That the applicant shall not, directly or

indirectly, make any inducement, threat or

promise to any person acquainted with the facts of

the case so as to dissuade him from disclosing

such facts to the Court or to any police officer;

5. The applicant shall file an undertaking to the

effect that he shall not seek any adjournment on

the dates fixed for evidence and 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 to ensure presence of the

applicant.

6. 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 default of this

condition is deliberate or without sufficient cause,

then it shall be open for the trial court to treat

such default as abuse of liberty of h