Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49235 of 2018 Applicant :- Shiv Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Pradeep Chauhan Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Shiv Kumar in Case Crime No.561 of 2018, under Sections 363, 376 IPC, and Section 3/4 POCSO Act, Police Station Khoda, District Ghaziabad.
Heard Sri Pradeep Chauhan, learned counsel for the applicant and Sri J.B. Singh, learned AGA along with Sri Abhinav Tripathi, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that going by the medico legal estimation of the prosecutrix's age, determined by the Chief Medical Officer, Ghaziabad vide his certificate dated 7.9.2018, the prosecutrix, on the basis of an ossification test, has been opined to be aged about 19 years. It is submitted that going by the aforesaid medico legal estimation of age, the prosecutrix is clearly a major. It is further submitted that the provisions of the POCSO Act are, therefore, not at all attracted. Learned counsel for the applicant has invited the attention of the Court to the statement of the prosecutrix under Section 164 Cr.P.C., where it has been categorically said that she and her sister have married the persons of their choice, the prosecutrix marrying the applicant and were apprehended while the two were proceeding from Kanpur to Delhi. The statement further shows that the prosecutrix and her sister both are victims of sexual violence at the hands of their father. The statement is wholesomely exculpatory in the submission of learned counsel for the applicant.
Learned AGA has opposed the prayer for bail.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegations, the severity of punishment, and, in particular, the fact that the prosecutrix is clearly a major and the statement under Section 164 Cr.P.C., is wholesomely exculpatory, 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 Shiv Kumar in Case Crime No.561 of 2018, under Sections 363, 376 IPC, and Section 3/4 POCSO Act, Police Station Khoda, District Ghaziabad 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 :- 20.12.2018 NSC