Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48328 of 2018 Applicant :- Dinesh Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Maimoona Fatima Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Crl. Misc. Exemption Application Heard Ms. Maimoona Fatima, learned counsel for the applicant. Cause shown is sufficient.
Exemption application stands allowed.
Crl. Misc. Bail Application No. 48328 of 2018 This is a bail application on behalf of the applicantDinesh Kumar in connection with Case Crime No. 126 of 2018 under Section 363, 366, 376 IPC and Section 5/6 Protection of Children from Sexual Offences Act, P.S. Zafrabad, District Jaunpur.
Heard Ms. Maimoona Fatima, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned AGA along with Sri Awaneesh Shukla, learned counsel appearing on behalf of the State.
The submission of learned counsel for the applicant is that going by the statement of the prosecutrix recorded before the Magistrate on 01.10.2018 under Section 164 Cr.P.C., it is clearly said that the prosecutrix is in love with the applicant and they would talk to each other over phone. It is further said that when her family came to know about it, they indulged in domestic violence in consequence of which on 03.08.2018 at 08:00 O'clock in the night hours, she boarded a bus to Lucknow along with the applicant. It is said that from Lucknow, the two boarded to a train to Mumbai. The two stayed in a rented room at Mumbai for a month. It is also said that the two have married in the month of March (presumably of the year 2018). It is further said by the prosecutrix that the applicant is her husband, and, the two now live together as man and wife. It is also indicated that the prosecutrix wishes to stay with her husband, and, that no one has coerced her into doing this. Learned counsel for the applicant has invited the attention of the Court to the medico legal estimation of the prosecutrix's age certified by the Chief Medical Officer, Jaunpur, vide his certificate dated 29.09.2018 based on an ossification test which opines her to be aged 17 and a half years. It is submitted that giving the usual allowance of two years or even six months in this case, the prosecutrix would reckon to be a major. It is submitted that looking to the age of the prosecutrix, the provisions of POCSO Act would not be attracted. It is argued that in view of the evidence on record and the stand taken by the prosecutrix, there is no justification to detain the applicant in jail pending trial.
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, prima facie, appears to be a major, and, the statement under Section 164 Cr.PC. that is exculpatory, 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 Dinesh Kumar involved in Case Crime No. 126 of 2018 under Section 363, 366, 376 IPC and Section 5/6 Protection of Children from Sexual Offences Act, P.S. Zafrabad, District Jaunpur 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 :- 18.12.2018/Deepak