Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46873 of 2018 Applicant :- Ajay @ Bittan Opposite Party :- State Of U.P.
Counsel for Applicant :- Pawan Singh Pundir,Lokesh Kumar Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
In compliance with the order of this Court dated 10.12.2018, the Chief Judicial Magistrate, Shamli has forwarded a report of the Medical Board dated 17.12.2018 constituted by the Chief Medical Officer, Shamli, to assess the age of the prosecutrix in this case, in a sealed cover, which has been opened under directions of the Court. It is exhibited and made part of the record. A perusal of the medico legal report of the Medical Board, which is also signed by the Chief Medical Officer, Shamli shows that the age of the prosecutrix, on the basis of an ossification test, has been estimated to be above 18 years, but below 19 years.
This is an application for bail on behalf of the applicant Ajay @ Bittan in Case Crime No.561 of 2018, under Section, 363, 366, 368, & 376, IPC and Section 3/4 POCSO Act, Police Station Jhinjhana, District Shamli.
Heard Sri Lokesh Kumar, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned AGA along with Sri Ashutosh Srivastava, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that going by the 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 under Section 164 Cr.P.C., where it is said that though the applicant took away the prosecutrix by blandishment but the two stayed in a hotel at Mathura, where they had intimate physical relations. Thereafter, the two proceeded to Agra where they stayed, and then to Muzaffar Nagar, where too they have stayed. It is said that from Muzaffar Nagar the two proceeded to Vyas (the Punjab) where the two were staying when they were apprehended by the police. It is categorically said by the prosecutrix that she had gone along with the applicant Ajay of her free will. It is also said that the applicant has not done anything by force, and whatever has happened, is by her consent. It is also said that she, nevertheless, wants to go with her parents. The submission of learned counsel for the applicant is that the aforesaid statement being exculpatory, no case is made out against the applicant.
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 prima facie, the prosecutrix is a major and the statement under Section 164 Cr.P.C., is exculpatory in unqualified terms, 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 Ajay @ Bittan in Case Crime No.561 of 2018, under Section, 363, 366, 368, & 376, IPC and Section 3/4 POCSO Act, Police Station Jhinjhana, District Shamli 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 :- 18.12.2018 NSC