Court No. - 78

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36272

of 2021

Applicant :- Vijay Patel

Opposite Party :- State Of U.P And Another

Counsel for Applicant :- Sunil Kumar Pandey

Counsel for Opposite Party :- G.A.,Ashutosh Kumar Pandey

Hon'ble Samit Gopal,J.

Heard Sri Bhashkar Upadhaya, learned counsel, holding brief of

Sri Sunil Kumar Pandey, learned counsel for the applicant, Sri

Ashutosh Kumar Pandey, learned counsel for the first

informant, Sri S. B. Maurya, learned counsel for the State and

perused the record.

This bail application under Section 439 of Code of Criminal

Procedure has been filed by the applicant, seeking enlargement

on bail during trial in connection with Case Crime No.191 of

2021, under Sections 363, 366, 506, 376, I.P.C. and Section 3/4

Protection of Children from Sexual Offences Act, registered at

Police Station Mugalsarai, District Chandauli.

Learned counsel for the applicant argued that applicant has been

falsely implicated in the present case. It is argued that the first

information report of the present matter was lodged under

sections 363, 366, 506, IPC, naming the applicant and two other

persons as accused, but the allegation therein is against the

applicant of enticing away the minor daughter aged about 16

years of the first informant. It is argued that said allegation is

false and without any substance. Learned counsel has placed

before the court the statement of the prosecutrix recorded under

section 161 Cr.P.C. and 164 Cr.P.C. and has argued that in both

the statements the prosecutrix has stated that she went with the

applicant out of her own free will and without any force or

coercion. Subsequently, the police has recorded the second

statement of the prosecutrix under section 161 Cr.P.C., which

was under pressure of her family member, as she was residing

with them at that point of time, in which she, for the first time

states that she was enticed away by the applicant and she was

sexual exploited, after which section 376 IPC and section 3/4

Protection of Children from Sexual Offences Act, were added.

It is argued that the prosecturix was produced before the Chief

Medical Officer, Chandauli, who as per his certificate dated

01.07.2021 has opined that she is aged about 18 years and

below 21 years and as such she is major. It is argued that even

the Aadhar Card and Voter I.D. of the prosecutrix would go to

demonstrate that she was a major girl. It is argued that the

applicant and the prosecutrix have solemnized their marriage

and they were living with each other for about a month and then

the applicant was arrested and the prosecutrix was taken away

by the police. It is further argued that since the certificate of

Chief Medical Office, Chandauli, ascertaining the age of the

prosecutrix is on record, the same would be conclusive of the

fact that she is a major girl. Learned counsel for the applicant

has relied upon the judgment of Apex Court in the case of

'Sanjeev Kumar Gupta Vs. The State of Uttar Pradesh' Criminal

Appeal No.1081 of 2019 and a judgment dated 09.01.2019 in

the case of 'Smt. Parvati Kumari and others Vs. State of U.P.' of

a Division Bench of this Court passed in Misc. Bench No.13419

of 2018, and has argued that in both the judgments, in no

uncertain term, it has been held that the age as opined by the

Chief Medical Officer, would have relevance, and the same

would be seen. It is argued that the applicant has no other

criminal antecedents as stated in paragraph no.10(b) of the

affidavit and is in jail since 19.07.2021, as stated in paragraph

no.18 of the affidavit.

Per contra, learned counsel for the first informant and the

learned counsel for the State have vehemently opposed the

prayer for bail and argued that applicant is named in the first

information report and there is an allegation against the

applicant of enticing away the prosecutrix. The prosecutrix in

her statement under section 161 and 164 Cr.P.C. has initially

st