Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44957 of 2018 Applicant :- Sadab Opposite Party :- State Of U.P.
Counsel for Applicant :- Rajiv Sisodia,Dhirendra Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Sadab in connection with Case Crime No. 118 of 2018, under Sections 363,376 IPC and Section 3/4 POCSO Act, P.S. Nangal Soti, District Bijnor.
Heard Sri Rajiv Sisodia, learned counsel for the applicant and Sri D.P.S. Chauhan, learned AGA, alongwith Sri Abhinav Tripathi appearing for the State.
The submission of the learned counsel for the applicant is that the prosecutrix, going by the medico legal estimation of her age, based on an ossification test, as indicted by the Chief Medical Officer vide certificate dated 28.7.2018, is about 18 years. She is, thus, a major, and, the provisions of the POCSO Act would not be attracted. It is argued that the applicant and the prosecutrix were in love. The prosecutrix went alongwith the applicant on 18.7.2018 at 6.00 in the morning to Uttarkashi. She went of her free will, stayed with the applicant, and, there both of them made an application to solemnize their marriage under the Special Marriage Act by moving Case No. 1 of 2018 before the Special Marriage Officer/ Pargana Magistrate, Bhatvadi (Uttarkashi) on 21.07.2018, whereon notice was issued to the father of the prosecutrix. A certified copy of the order aforesaid passed by the Special Marriage Officer, Bhatvadi, Uttarkashi is annexed as Annexure 10 to the affidavit.
It is pointed out that in the statement under Section 161 Cr.P.C. the prosecutrix has supported the said case of love, consent and proceeding to marry to Uttarkashi. She has taken the same stand before the doctor in her statement made in confidence during her medical examination which is recorded at page 24 of the paper book. However, in her statement under Section 164 Cr.P.C., which has been made after recovery, and, going by her parents, she has spoken inculpatory against the applicant. Learned counsel for the applicant has laid much emphasis on the order of the Special Marriage Officer dated 21.07.2018 which could not have been passed unless the applicant and the prosecutrix went and appearing before the said Officer and to his satisfaction indicated their consent besides their eligibility.
Learned A.G.A. opposed the prayer for bail.
Considering the facts and circumstances of the case, the nature of allegations, the gravity of the offence, the severity of punishment, the evidence appearing in the case, in particular, the fact that the stand of the prosecutrix in her statement under Section 161 Cr.P.C., the statement made in confidence to the doctor and her act in appearing before the Special Marriage Officer to solemnize a marriage are all exculpatory and the fact that the prosecutrix is prima facie a major, but without expressing any opinion on merits, this Court, finds it to be a fit case for bail.
The bail application, accordingly, stands allowed.
Let the applicant Sadab involved in Case Crime No. 118 of 2018, under Sections 363,376 IPC and Section 3/4 POCSO Act, P.S. Nangal Soti, District Bijnor be released on bail on executing his 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 :- 27.11.2018 BKM/-