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BAIL - POCSO ACT - CONSENTING PARTY - AGE OF VICTIM - [The court granted bail to the accused in a POCSO case, considering the victim's statement that she was in a consensual relationship with the accused and was over 18 years of age.]
Fact of the Case:
The applicant was arrested and charged under Sections 363, 376 IPC, and 3/4 POCSO Act for allegedly kidnapping and raping a minor. The victim, in her statement under Section 164 CrPC, stated that she was in a consensual relationship with the applicant and wanted to marry him, but her parents did not approve. She also claimed to be over 18 years of age.
Finding of the Court:
The court, after considering the victim's statement and the absence of any convincing evidence to indicate the possibility of tampering with evidence, found that the applicant could be released on bail.
Issues: Whether the applicant should be granted bail in a POCSO case considering the victim's statement of consent and her age being over 18 years.
Ratio Decidendi: The court relied on the victim's statement under Section 164 CrPC, in which she stated that she was in a consensual relationship with the applicant and was over 18 years of age. The court also considered the absence of any convincing evidence to indicate the possibility of tampering with evidence.
Final Decision: The court allowed the bail application and ordered the release of the applicant on bail subject to certain conditions.
Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40698 of 2022
Applicant :- Kapil
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Sunil Kumar Dwivedi
Counsel for Opposite Party :- G.A.,Dhirendra Kumar Agrahari
Hon'ble Dr. Gautam Chowdhary,J.
Heard Sri Sunil Kumar Dwivedi, learned counsel for the applicant, learned
counsel for the State, Sri Dhirendra Kumar Agrahari, learned counsel for
the informant and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has
been filed by the applicant Kapil, seeking enlargement on bail during trial
in connection with Case Crime No. 73 of 2022, under Sections 363, 376
I.P.C. and section 3/4 POCSO Act, registered at P.S.- Ahar, District-
Bulandshahr.
The submission advanced by learned counsel for the applicant is that the
applicant is innocent and has been falsely implicated in the present case
due to ulterior motive. According to the statement under section 164
Cr.P.C., the victim herself has stated that she was having love relation with
the applicant and she wants to marry with the applicant but her parents
were not agree. She also stated that she has performed the marriage in
temple in Delhi but she has no proof of it. The victim is consenting party
and she also stated that she is aged about 18 years. Several other
submissions in order to demonstrate the falsity of the allegations made
against the applicant have also been placed before the Court. The
circumstances which, according to the counsel, led to the false implication
of the accused have also been mentioned. It has also been assured on
behalf of the applicant that he is ready to cooperate with the process of law
and shall faithfully make himself available before the court whenever
required and is also ready to accept all the conditions which the Court may
deem fit to impose upon him. It is further contended by learned counsel
for the applicant that the applicant is languishing in jail since 07.07.2022
having no criminal history.
Per contra, learned AGA opposed the prayer for bail.
After perusing the record in the light of the submissions made at the bar
and after taking an overall view of all the facts and circumstances of this
case, the nature of evidence and also the absence of any convincing
material to indicate the possibility of tampering with the evidence, this
Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Kapil, be released on bail in the aforesaid case crime
number on furnishing a personal bond and two heavy sureties each in the
like amount to the satisfaction of the court concerned with the following
conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not
harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on
every date and will not delay the disposal of trial in any manner
whatsoever.
(iii) The applicant shall file an undertaking to the effect that he shall not
seek any adjournment on the date 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.
(iv) The applicant will not misuse the liberty of bail in any manner
whatsoever. 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.,
may be issued and if 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 I.P.C.
(V) The applicant shall remain present, in person, before the trial court on
dates fixed for (1) opening of the case, (2) framing of charge and (3)
recording of statement under
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