Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22565 of 2017 Applicant :- Rishabh Yadav Opposite Party :- State Of U.P.
Counsel for Applicant :- Satya Dheer Singh Jadaun,Man Bahadur Singh,Vinay Kumar Counsel for Opposite Party :- G.A.,Dheeraj Kumar Dwivedi
Hon'ble J.J. Munir,J.
This is an application for bail filed on behalf of Rishabh Yadav in Case Crime No.132 of 2017, under Sections 363, 366, 376, 506 I.P.C. and 3/4 POCSO Act, P.S. Naubasta, District Kanpur Nagar.
Heard Sri Man Bahadur Singh, learned counsel for the applicant, Sri Dheeraj Kumar Dwivedi, learned counsel for the complainant and Sri Kamal Singh Yadav, learned AGA alongwith Sri Vivek Dubey appearing for the State.
The submission of the learned counsel for the applicant is that it is a case where the applicant, a young boy, reading in Class 11th, was into a relationship with the prosecutrix; that the two were together with the prosecutrix leaving home of her own accord and stayed with the applicant over night where they had sex with consent which excludes any charge of rape; that the learned counsel for the applicant has invited the attention of the Court to the statement under Section 164 Cr.P.C. which according to his submission shows that the victim though under the influence of her parents has indicated that she was with the accused but did not complain to anyone about her illegal detention or ravishment though neighbours were around; that the entire tenor of the statement under Section 164 Cr.P.C. is haphazard and behind a veil the consent is not difficult to read; that the applicant was not arrested with the victim or the victim recovered from his custody; instead he was called over to the police station on 18.02.2017 by the S.H.O. of P.S. Naubasta, Kanpur Nagar alongwith the prosecutrix, and, living as he was with her, both of them went together excluding all possibility of coercion in the relationship; that the statement or stand of the prosecutrix to the extent it now appears against the applicant is the result of the parents influence; and, that the applicant who is a young man with no criminal history is a student of Class 11th is in jail since 28.02.2017, a period of more than a year by now.
Learned counsel for the complainant on the other hand has vehemently opposed the prayer for bail. He submits that it is a case of crime against women and also a child at that in view of which provisions of Section 363, 366, 376 I.P.C; that the applicant enticed away the victim who was admittedly a minor aged about fifteen years, eight months on the date of occurrence; that since physical relations are admitted, the liability of the applicant for a statutory rape cannot be denied the consent even if present without prejudice is irrelevant; that the applicant stands charged under the POCSO Act as already said where the provisions are very stringent. In his submission the applicant in the totality of circumstances is not entitled to bail.
Learned AGA has also opposed the prayer for bail adopting the submissions of the learned counsel for the complainant.
Considering the overall facts and circumstances of the case, the nature of allegations, the gravity of the offence, the fact that the prosecutrix is a minor where the plea of consent is immaterial and the applicant stands charged under the POCSO Act but without expressing any opinion on merits, this Court does not find it to be a fit case for bail at this stage.
Anything said in this order will not influence the trial court in assessing evidence laid at the trial and coming to its own conclusions based on that evidence uninfluenced by this order.
The bail application, accordingly, stands rejected at this stage.
However, looking to the period of detention of the applicant, it is directed that the trial court will proceed with and conclude the trial strictly and positively within six months from the date of receipt of certified copy of this order in accordance with Section 309 Cr.P.C. and in view of principle laid down in the recent judgment of Hon'ble Supreme Court in the case of Vinod Kumar V. State of Punjab reported in 2015 (3) SCC 220, if there is no legal impediment.
It is made clear that in case the witnesses are not appearing, the concerned court is directed to initiate necessary coercive measure for ensuring their presence positively.
Let a copy of the order be certified to the court concerned for strict compliance.
Order Date :- 30.3.2018 Shahroz