Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47738 of 2018 Applicant :- Abhishek Kumar Pandey @ Badkoo Opposite Party :- State Of U.P.
Counsel for Applicant :- Amit Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
In compliance with the order of this Court dated 13.12.2018, a medico legal report regarding the prosecutrix's age has been submitted by the Chief Medical Officer, Kaushambi in a sealed cover. The sealed cover has been opened under the directions of this Court. It is exhibited and made part of the record. A perusal of the report of the Chief Medical Officer, Kaushambi dated 15.12.2018 shows that on the basis of an ossification test, the prosecutrix has been opined to be aged about 19 years.
This is an application for bail on behalf of the applicant Abhishek Kumar Padey @ Badkoo in Case Crime No.131 of 2017, under Sections 363, 366, 376(2) Jh IPC, and Section 3/4 POCSO Act, Police Station Pashchim Saria, District Kaushambi.
Heard Sri Amit Kumar Pandey, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned AGA along with Sri Abhinav Tripathi, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that going by the aforesaid medico legal estimation of the prosecutrix's age, she is clearly a major and, therefore, the provisions of the POCSO Act would not be attracted. Learned counsel for the applicant has invited the attention of the Court to the statement of the prosecutrix recorded before the Chief Judicial Magistrate, Kaushambi, under Section 164 Cr.P.C., where she has spoken exculpatory and said that she had gone with the applicant of her free will to Rajasthan and married him in a temple at Allahabad. She has further said that she wants to stay with Abhishek (the applicant). The submission of learned counsel for the applicant is that looking to the said statement of the prosecutrix and her age now certified, the prosecution have no case to ask for detention, pending trial.
Learned AGA has opposed the prayer for bail.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegations, the severity of punishment, and, in particular, the fact that the prosecutrix is prima facie a major and the statement under Section 164 Cr.P.C., is absolutely exculpatory, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
The bail application, accordingly, stands allowed.
Let the applicant Abhishek Kumar Padey @ Badkoo in Case Crime No.131 of 2017, under Sections 363, 366, 376(2) Jh IPC, and Section 3/4 POCSO Act, Police Station Pashchim Saria, District Kaushambi be released on bail on executing his personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
v) 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 such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court.
Order Date :- 19.12.2018 NSC