Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41726 of 2019 Applicant :- Shamim Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manish Joshi,Kshitij Pal Singh Counsel for Opposite Party :- G.A.,Zafar Abbas
Hon'ble Siddharth,J.
Heard Shri Kshitij Pal Singh, learned counsel for the applicant. Shri Zafar Abbas, learned counsel for the informant, learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Shamim with a prayer to release him on bail in Case Crime No. 211 of 2019, under Sections 363, 366, 376, 504, 506 IPC, and 3/4 POCSO Act Police Station Naugawan Sadat, District- Amroha, during pendency of trial.
It is argued by the learned counsel for the applicant that the applicant is absolutely innocent and has been falsely implicated in the present case with some ulterior motive.It is further submitted that from the statements of the victim under section 161 and 164 Cr.P.C. it appears that victim willingly eloped with applicant. She went to Mordabad, thereafter she came to Allahabad and they contacted their lawyer. He informed that there is holiday of two days then she went to Agra and on dargah sought blessing.It is further submitted that victim is consenting party, she has falsely implicated the applicant.The age of the victim as per her own admission in her statements under section 161 and 164 Cr.P.C. is sixteen years. As per medical report she is aged about sixteen years.It is submitted that she is illiterate.However applicant has filed transfer certificate of class VIII which shows her date of birth is 1.1.2000.The applicant is languishing in jail since 15.7.2019, who is not a previous convict. In case, the applicant is released on bail, he will not misuse the liberty of bail.
Per contra learned counsel for the informant and learned A.G.A. have vehemently opposed the prayer for bail of the applicant on the ground that victim is illiterate .The transfer certificate of class VIII of the victim is fabricated , which has been filed for obtaining the bail.He has submitted that transfer certificate is not issued by the school.
After hearing the rival contentions it is clear that victim is illiterate and she has also admitted this fact in her statements under sections 161 and 164 Cr.P.C. As per Section 94 of Juvenile Justice (Care and Protection of children) Act, 2015 the medical report will prevail in the absence of school certificate and given margin of two years on higher side, she can be considered to be major, in view of the law laid down by Apex court in the case of Java Mala Vs. Home Secretary, Government of Jammu and Kashmir in Law S(SC) -1982-7-7.
Having considered the submissions of the parties noted above, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 28.11.2019 Atul kr. sri.