Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45002 of 2018 Applicant :- Mukesh Opposite Party :- State Of U.P.
Counsel for Applicant :- Manish Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
In compliance with the order of this Court dated 27.11.2018, the Chief Judicial Magistrate, Ghaziabad has forwarded the report of the medical board, constituted by the Chief Medical Officer, Ghaziabad to assess the prosecutrix's age, in a sealed cover. The sealed cover has been opened under orders of this Court. The report is exhibited and made part of it.
This is a bail application on behalf of the applicant Mukesh in connection with Case Crime No. 429 of 2018 under Section 363, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Loni, District Ghaziabad.
Heard Sri Manish Kumar Tripathi, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA along with Awaneesh Shukla, learned counsel appearing on behalf of the State.
The submission of learned counsel for the applicant is that a perusal of the medico legal report dated 30.11.2018 submitted by the Chief Medical Officer, Ghaziabad on the basis of an ossification test, the prosecutrix has been opined to be aged about 19 years. The submission of learned counsel for the applicant is that the prosecutrix is clearly a major, and, therefore, the provisions of POCSO Act are not attracted. Learned counsel for the applicant has invited the attention of the Court to the Statement of the prosecutrix under Section 164 Cr.PC. recorded before the Magistrate on 07.07.2018 which shows that the prosecutrix has spoken exculpatory, and, said that the applicant took away the prosecutrix by blandishment. She went along with him to Mathura and stayed in a guesthouse. The following day, they proceeded to Mumbai, where the two stayed for two months. It is said that the two stayed in a rented house in Mumbai. It is also said that the two had carnal relations but these were by her consent. It is said that the applicant is a married man, and, this fact was known to the prosecutrix because the applicant had been a tenant of the prosecutrix's family, and stayed with his family, in the tented accommodation. It is submitted by the learned counsel for the applicant that looking to the aforesaid statement of the prosecutrix, no case is disclosed 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 is clearly a major and the statement under Section 164 Cr.PC. which 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 Mukesh involved in Case Crime No. 429 of 2018 under Section 363, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Loni, District Ghaziabad. 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