Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44425 of 2018 Applicant :- Deepak Pathak Opposite Party :- State Of U.P.
Counsel for Applicant :- Dipak Kumar Tiwari Counsel for Opposite Party :- G.A.,Ajay Senger
Hon'ble J.J. Munir,J.
This is a bail application on behalf of the applicant Deepak Pathak in connection with Case Crime No. 493 of 2016 under Section 366, 376 IPC P.S. Kotwali Orai, District Jalaun.
Heard Sri Veeresh Mishra, learned Senior Advocate assisted by Sri D.K. Tiwari, learned counsel appearing on behalf of the applicant and Sri Indrajeet Singh Yadav, learned AGA along with Sri Ashutosh Srivastava, learned counsel appearing on behalf of the State.
In compliance of the order of this Court dated 20.11.2018, the Chief Medical Officer, Jalaun has constituted a medical board who have submitted a report dated 23.11.2018. A perusal of the said report shows that the prosecutrix has been opined, on the basis of ossification test, to be aged about 21 years. The said report is retained on record, and, made part of it.
A supplementary affidavit has been filed today on behalf of the applicant. The same is also taken on record. A perusal of the Annexure SA-1 appended to supplementary affidavit dated 26.11.2018, is the High school examination mark-sheet of the prosecutrix, where her date of birth has been shown to be 10.07.1997. The said date of birth makes the prosecutrix to be a major in unqualified terms.
The submission of learned Senior Counsel for the applicant is that he has been falsely implicated in the present crime. Learned Senior Counsel for the applicant has invited the attention of the Court to the statement of the prosecutrix under Section 164 Cr.P.C., where in part, it is alleged that force was used to abduct the prosecutrix but in good part of it, the prosecutrix has indicated that she married the applicant by appearing before the Registrar of Marriages, and, thereafter, before this Court. Though the statement, thus, suggests and says in some part of it, that it was under the fear but in the other part it is equally said that she had stated before the Magistrate that she was marrying the applicant without any force, duress or coercion. It is submitted that the statement under Section 164 Cr.P.C. is not exculpatory but inherently contradictory that does not inspire confidence. Learned Senior Counsel has further invited the attention of this Court to the order of a Division Bench of this Court passed in Criminal Misc. Writ Petition No. 11644 of 2016 where the the statement of the prosecutrix, who was present in Court, was recorded where she claimed that she is major and of her freewill walked out of her parent's home and entered into a matrimonial alliance with the applicant. This Court vide order dated 20.05.2016 passed in criminal writ petition aforesaid, granted stay of arrest pending investigation. The submission of learned counsel for the applicant is that it is a case of consent and marriage by a person of competent years to marry, but under pressure of her family members she has spoken inculpatory in a part of her statement under Section 164 Cr.P.C. and elsewhere also. It is argued that on this kind of evidence and background, it is not desirable to detain the applicant in jail pending trial, particularly, when a charge sheet in the case has already been filed. It is further argued that the applicant has no criminal history, and, is in jail since 24.09.2018.
Learned AGA has opposed the prayer for bail.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, in particular, the fact that the prosecutrix has spoken inconsistently in her statement under Section 164 Cr.P.C. and further supported the marriage to the applicant as also her consent before the Registrar of Marriages, and, also during the hearing of criminal writ petition before this Court challenging the FIR, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Deepak Pathak involved in Case Crime No. 493 of 2016 under Section 366, 376 IPC P.S. Kotwali Orai, District Jalaun be released on bail on executing a 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 :- 27.11.2018 Deepak