Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45337 of 2018 Applicant :- Kalyan @ Kallu Opposite Party :- State Of U.P.
Counsel for Applicant :- Rakesh Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
In compliance with the orders of this Court dated 28.11.2018, the Chief Medical Officer, Rampur has submitted the report of the medical board about the prosecutrix's age in a sealed cover. The sealed cover has been opened under orders of this Court. The report of the medical board is exhibited and made part of the record.
This is a bail application on behalf of the applicant Kalyan @ Kallu in connection with Case Crime No. 169 of 2017 under Section 363, 366, 376 IPC and Section 3/4, 5(J)(II) Protection of Children from Sexual Offences Act, P.S. Shahzad Nagar, District Rampur.
Heard Sri Rakesh Kumar Mishra, learned counsel for the applicant and Sri Sudhir Kumar Pathak, learned AGA along with Sri Awanish Shukla, learned counsel appearing on behalf of the State.
The learned counsel for the applicant has invited the attention of this Court to the report of the medical board dated 30.11.2018 submitted by the Chief Medical Officer, Rampur, based on an ossification test, where the prosecutrix has been opined to be 18 years. He submits that looking to the aforesaid medically estimated age of the prosecutrix, the provisions of POCSO Act would not at all be attracted. Learned counsel for the applicant has next invited the attention of this Court to the statement of the prosecutrix under Section 164 Cr.P.C., where she has spoken exculpatory, and, said that on 14.04.2017 she went along with the applicant of her free will. It is said that she was initially taken by the applicant for the purpose of treatment as the applicant is a Tantrik. Now, she is in love with the applicant. It is stated that the prosecutrix's family refused to marry her with the applicant Thereupon, on 14.04.2017, she went to Dhanauta and called over the applicant to Bareilly and married him. It is also said that the two have been blessed with a child. It is also said that she wants to stay with her husband, the applicant. The submission of learned counsel for the applicant is that looking to the aforesaid statement of the prosecutrix, no case is made out against the applicant.
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, is a major according to the medico legal estimation of her age, and, the statement under Section 164 Cr.P.C. 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 Kalyan @ Kallu involved in Case Crime No. 169 of 2017 under Section 363, 366, 376 IPC and Section 3/4, 5(J)(II) Protection of Children from Sexual Offences Act, P.S. Shahzad Nagar, District Rampur 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 :- 21.12.2018 Deepak