Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The present bail application has been filed by the applicant in Case Crime No.222 of 2019, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, 2012, Police Station - Kotwali Bhinga, District - Shrawasti.
The occasion of present bail application arisen on rejection of bail plea of applicant by Additional Sessions Judge-I/Special Judge, POCSO Act, Shrawasti vide order dated 27.8.2019. A copy of the bail application has already received in the office of G.A.
Learned counsel for the applicant submits that on bare perusal of the F.I.R., it appears that the informant has reported that his daughter aged about 14 years, a student of Class-9 has eloped from the house along with the Sanjay @ Sajje @ Kaushal, the accused applicant.
Learned counsel for the applicant by reading over the said portion of the F.I.R. wants to submit that the elopement of informant's daughter, the victim along with the Sanjay @ Sajje @ Kaushal is well known to the informant. Learned counsel for the applicant further drew attention towards the medico legal report placed at page-33 of the paper book which is done by the Medical Board on 25.7.2019. The age of victim is radiologically assessed about 17 years. The most peculiar fact is that the victim is reported to having 16 weeks' alive pregnancy, however, the F.I.R. of elopement is lodged on 20.7.2019, with regard to the elopement.
Learned counsel further submits that certainly the physical contact between the victim and applicant-accused was done much before the date of elopement and that is why the affairs between the victim and the accused applicant is known to the informant. He further argued that the according to radiological assessment the age of the victim is about 17 years, that is to say the girl should be treated major and having attained the age of majority and her elopement was consensual with the accused applicant.
He further submits that on reading the statement recorded by the Investigating Officer under Section 161 Cr.P.C. it appears that the victim eloped on 20.7.2019 at about 2:30 p.m. on her own had left out the house and reached at Bahraich Bus Station and then went to Lucknow from where she along with the applicant-accused proceeded for Rajasthan, where they stayed 4 to 5 years, the physical contacts were made, however, discrepancy in the statement under Section 164 Cr.P.C. is as to the forcibly making the physical relation with the victim by the applicant accused.
Learned counsel submits that the fact regarding 16 weeks alive pregnancy, the Statement under Section 164 Cr.P.C. before the Magistrate is belied in itself, this create a doubt as to the commission of offence in the said Section of I.P.C. and POCSO Act which prima facie made a ground for grant of bail to the accused applicant. Moreover, all these matters relating to evidences are to be tried and their veracity can be judged during trial. If bail is granted and he is released on bail, he would be able to put his defence during the trial, he is a poor person and not in a position to flee away from the judicial process even abide himself from the order and process of the Court and therefore, he may be granted bail.
Learned A.G.A. protesting the bail applicant-accused and on the basis of instructions submits that the date of birth of girl is 9.1.2005 and admits that she is minor and her consent even on reaching herself to the applicant-accused and making physical contacts are meaningless for the constitution of offence under Sections 363, 366, 376 IPC read with Section POCSO Act, therefore, accused applicant is not innocent, however, he submitted that the investigation has already been concluded. So far as the charge sheet with regard to the offence made out against the accused applicant is submitted before the trial and trial is to be called.
Learned A.G.A. on query of the court further submitted that on the basis of instructions he is not in a position to submit that the accused applicant having any criminal record/criminal antecedent.
Considering the facts and circumstances of the case, perusing the record, considering the nature of allegations, arguments advanced by learned counsel for the parties and looking into the complicity of the applicant accused in the offence, the gravity of offence, severity of punishment without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
Let applicant (Sanjay @ Sajje @ Kaushal) involved in Case Crime No.222 of 2019, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, 2012, Police Station - Kotwali Bhinga, District - Shrawasti, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(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 :- 27.9.2019 Gaurav/-