Court No. - 86
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10258 of 2019 Applicant :- Raju Opposite Party :- State of U.P.
Counsel for Applicant :- Shiv Mangal Pandey,Mohd. Afzal,Prateek Kumar Counsel for Opposite Party :- G.A.,Ajay Vashisth
Hon'ble Ali Zamin,J.
Counter affidavit filed on behalf of State and rejoinder affidavit filed on behalf of applicant. The same are taken on record.
Heard learned counsel for the applicant, learned A.G.A. as well as learned counsel for the informant and perused the record.
This bail application has been moved on behalf of applicant Aajam, who is involved in Case Crime No.275 of 2018, under Sections 363, 366, 376 I.P.C. & 3/4 POCSO Act, P.S. Amapur, District Kasganj.
According to F.I.R. version daughter of informant, who is a minor girl aged about 15 years has been kidnapped by his villagers Raju, Durjan and Naresh by enticing her away on 16.09.2018 and later on applicant facilitated her to talk with the informant by phone and assured him not to search her, she is safe.
Learned counsel for the applicant submits that the victim was a consenting party. In her statement recorded under Section 161 Cr.P.C., the victim has stated that she had gone Gujarat with the applicant Raju on her own free will and when the money was exhausted then they returned to Agra. At the time of medical examination same story was narrated by the victim as stated under Section 161 Cr.P.C. Thereafter, in statement under Section 164 Cr.P.C., she took a u-turn and made allegations against two brothers of the applicant and brother-in-law Raj Bahadur. She has further stated that applicant his brother Durjan and brother-in-law Raju took her in a room, applicant's sister and brother-in-law Raj Bahadur sat over the door, so that, no- one come, Raju, Durjan and Raj Bahadur committed misdeed with her. Thus, a contrary version has been given by the victim. According to medical report age of the victim has been found 16 years. As per medical jurispurdence two years benefit will be given to the applicant. Learned counsel also submits that as per provision of Section 94 Juvenile Justice Board, parameters for determination of the age of victim will be followed. In the instant case, the first attended school certificate has not been submitted or collected by the Investigating Officer, so, radiological age determined by the doctors will be taken into consideration in the case. There is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. It is next contended that there is no previous criminal history of the applicant and he is languishing in jail since 03.10.2018.
Per contra, learned A.G.A. as well as learned counsel for the informant have vehemently opposed the prayer for bail and submits that in first information report specific allegation has been made against the applicant and in the statement under Section 164 Cr.P.C., she has also made specific allegation against the applicant. As per school certificate the date of birth of the victim is 01.01.2002 according to which at the time of incident the victim was below 16 years. Since in the instant case school certificate is available, therefore, radiological age has no relevance. Applicant is not entitled for bail.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and as per school certificate age of the victim on the date of incident, parameters provided under Section 94 in the Juvenile Justice Board and also perusing the material on record, without expressing any opinion on merit of the case, I do not find a case of bail.
Consequently, the prayer for bail of the applicant Raju is hereby refused and the bail application is rejected.
Order Date :- 27.11.2019 Jitendra