Court No. - 71

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48400 of 2019

Applicant :- Monis

Opposite Party :- State of U.P.

Counsel for Applicant :- Pavan Kishore,Mahendra Pratap Yadav

Counsel for Opposite Party :- G.A.,Amit Kumar Singh

Hon'ble Samit Gopal,J.

Heard Sri Pavan Kishore, learned counsel for the applicant, Sri

Amit Kumar Singh, learned counsel for the first informant, Sri

Pankaj Mishra, learned counsel for the State and perused the

material on record.

This bail application under Section 439 of Code of Criminal

Procedure has been filed by the applicant-Monis seeking

enlargement on bail during trial in connection with Case Crime

No.103 of 2019, under Sections 376 IPC, 3/4 POCSO Act and

Sections 67, 67A Information Technology Act, registered at

Police Station Mahuli, District Sant Kabir Nagar.

The prosecution case as per FIR lodged on 13.3.2019 by

Asirunnisha, the mother of the prosecutrix naming the applicant

only as the accused is that her daughter aged about 13 years and

4 months was lured by the applicant since the last one year and

he used to commit rape upon her. Her daughter did not inform

her about the said incident due to shame. The applicant used to

lure her by making false promise of marriage and used to

commit sexual assault. Around 15 days back, the applicant

circulated an obscene photograph of her daughter on Whats-

App and net. The FIR is thus lodged.

Learned counsel for the applicant argued that the applicant has

been falsely implicated in the present case. As per the certificate

of the Chief Medical Officer, Sant Kabir Nagar, the age of the

victim is opined to be 17 years and by giving variation, two

years can be added to it and by that the victim would be a

major. The prosecutrix in her statement under Section 161 states

that on the call of the applicant, she used to go to visit him

where he used to commit rape on her since the last one year. He

got her photograph clicked by consent. Subsequently in her

statement under Section 164 Cr.P.C., she gave a different

version and states that the applicant committed rape on her

around 10-15 days back and launched her photograph on the

Whats-App. She knows the applicant since last one year. The

prosecutrix is a consenting party. The photograph as alleged to

be affixed on the wall of Whats-App is of the prosecutrix being

intimate with the applicant but could not stated to be obscene in

any manner. It has also been pointed out that the applicant is not

having any criminal history as stated in para 24 of the affidavit

and is in jail since 15.3.2019.

Per contra learned counsel for the first informant and learned

counsel for the State vehemently opposed the prayer for bail

and argued that the applicant is named in the FIR, in the

statement of the prosecutrix recorded under Sections 161, 164

Cr.P.C. The prosecutrix is a minor girl aged about 13 years and

4 months as per her mother. The prosecutrix has disclosed her

aged about 16 years in her statement under Section 161 Cr.P.C.

and about 13 years in her statement under Section 164 Cr.P.C.

The applicant has affixed the photograph of the prosecutrix on

the wall of Whats-App and it would be easily seen by anyone.

Even there is allegation of his launching the photograph on net

and sending it to other persons on Whats-App. In the statement

under Section 161 Cr.P.C., Seema has stated that one Mahboob

has sent the photograph of the prosecutrix and stated that

Display picture of Whats App has an obscene photo with a girl

which appears to be daughter of the first informant.

After hearing the counsel for the parties and perusing the

record, it is apparent that the applicant has pasted the

photograph of the prosecutrix on the wall of Whats-App and the

same is not disputed. There is an allegation of launching the

photograph of the prosecutrix on net and also being sent to

various persons. The statement of the prosecutrix is against the

applicant who has committed