The case has been taken through video conferencing facility.
Heard learned counsel for the applicant, Ms. Meera Tripathi, learned A.G.A. for the State and perused the record.
The present application under Section 439 Cr.P.C. has been filed by the applicant seeking bail in FIR No.0298 of 2020, under Sections 376, 323, 504, 506, 420 I.P.C. and Section 5/6 of POCSO Act, Police Station Gadaganj, District Raebareli.
It is alleged that the accused applicant established physical relations with the prosecutrix on the pretext of marrying her. It is further alleged that the prosecutrix got pregnant and when it came to the knowledge of the accused applicant, he asked her to abort the fetus, however, she refused to go for abortion. It is further alleged that the prosecutrix had fever one particular day and the accused applicant administered some drugs, as a result of which she got miscarriage. It is alleged that though the family members of the accused applicant were ready to perform the marriage with the prosecutrix, but later they refused.
Sri R.B.S. Rathaur, learned counsel for the accused applicant states that the accused applicant's father died when he was very young and he has two sisters who are studying. The accused applicant was not ready to marry the prosecutrix and the family members of the prosecutrix had been putting pressure upon the applicant to perform marriage with the prosecutrix. He also states that though in the High School Certificate the age of the prosecutrix has been recorded as 01.01.2004 whereas in her statement recorded under Section 164 Cr.P.C. she has stated that she is 18 years old. Sri Rathaur has further argued that accused applicant has been falsely implicated in the present case. The medical report does not support the allegation of offence under Section 313 I.P.C. and, therefore, the Investigating Officer has dropped that section. It is further submitted that villagers have also given affidavits in favour of the applicant that he has been falsely implicated in the case.
On the other hand, Ms. Meera Tripathi, learned A.G.A. has opposed the prayer of bail and submits that the accused applicant has established physical relationship with the prosecutrix on the pretext of marrying her. He made her pregnant and also aborted the fetus. She, therefore, submits that considering the seriousness of offence, the applicant is not entitled for bail.
I have considered the submissions advanced on behalf of learned counsel for the parties.
The prosecutrix has stated that the accused applicant continued to have physical relations with the prosecutrix for six months on the pretext of marriage. There is a dispute regarding her age, inasmuch as she had stated in her statement under Section 164 Cr.P.C. that she is 18 years of age and studies in Class-XII. It does not appeal to reason that why one would succumb the lust with another on the pretext of marriage and that too for six months. Prima facie, the prosecutrix has been a consenting party.
Considering the facts and circumstances of the case and the fact that there is little dispute regarding the age and as per their own understanding the prosecutrix is major, it would be appropriate to enlarge the applicant on bail. The bail application is, thus, allowed.
Let accused-applicant Kamal Rai involved in aforesaid case be released on bail on his furnishing a personal bond with two sureties to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Order Date :- 16.4.2021 Anand Sri./-