Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36272 of 2021 Applicant :- Vijay Patel Opposite Party :- State Of U.P And Another Counsel for Applicant :- Sunil Kumar Pandey Counsel for Opposite Party :- G.A.,Ashutosh Kumar Pandey
Hon'ble Samit Gopal,J.
Heard Sri Bhashkar Upadhaya, learned counsel, holding brief of Sri Sunil Kumar Pandey, learned counsel for the applicant, Sri Ashutosh Kumar Pandey, learned counsel for the first informant, Sri S. B. Maurya, learned counsel for the State and perused the record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant, seeking enlargement on bail during trial in connection with Case Crime No.191 of 2021, under Sections 363, 366, 506, 376, I.P.C. and Section 3/4 Protection of Children from Sexual Offences Act, registered at Police Station Mugalsarai, District Chandauli.
Learned counsel for the applicant argued that applicant has been falsely implicated in the present case. It is argued that the first information report of the present matter was lodged under sections 363, 366, 506, IPC, naming the applicant and two other persons as accused, but the allegation therein is against the applicant of enticing away the minor daughter aged about 16 years of the first informant. It is argued that said allegation is false and without any substance. Learned counsel has placed before the court the statement of the prosecutrix recorded under section 161 Cr.P.C. and 164 Cr.P.C. and has argued that in both the statements the prosecutrix has stated that she went with the applicant out of her own free will and without any force or coercion. Subsequently, the police has recorded the second statement of the prosecutrix under section 161 Cr.P.C., which was under pressure of her family member, as she was residing with them at that point of time, in which she, for the first time states that she was enticed away by the applicant and she was sexual exploited, after which section 376 IPC and section 3/4 Protection of Children from Sexual Offences Act, were added. It is argued that the prosecturix was produced before the Chief Medical Officer, Chandauli, who as per his certificate dated 01.07.2021 has opined that she is aged about 18 years and below 21 years and as such she is major. It is argued that even the Aadhar Card and Voter I.D. of the prosecutrix would go to demonstrate that she was a major girl. It is argued that the applicant and the prosecutrix have solemnized their marriage and they were living with each other for about a month and then the applicant was arrested and the prosecutrix was taken away by the police. It is further argued that since the certificate of Chief Medical Office, Chandauli, ascertaining the age of the prosecutrix is on record, the same would be conclusive of the fact that she is a major girl. Learned counsel for the applicant has relied upon the judgment of Apex Court in the case of 'Sanjeev Kumar Gupta Vs. The State of Uttar Pradesh' Criminal Appeal No.1081 of 2019 and a judgment dated 09.01.2019 in the case of 'Smt. Parvati Kumari and others Vs. State of U.P.' of a Division Bench of this Court passed in Misc. Bench No.13419 of 2018, and has argued that in both the judgments, in no uncertain term, it has been held that the age as opined by the Chief Medical Officer, would have relevance, and the same would be seen. It is argued that the applicant has no other criminal antecedents as stated in paragraph no.10(b) of the affidavit and is in jail since 19.07.2021, as stated in paragraph no.18 of the affidavit.
Per contra, learned counsel for the first informant and the learned counsel for the State have vehemently opposed the prayer for bail and argued that applicant is named in the first information report and there is an allegation against the applicant of enticing away the prosecutrix. The prosecutrix in her statement under section 161 and 164 Cr.P.C. has initially stated of her being in companionship of the applicant. In her second statement recorded under section 161 Cr.P.C. she has stated that the applicant established physical relationship with her, which was sexual assault on her, after which section 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, was added and charge sheet has been submitted in the sections, as mentioned in the present bail application. It is argued that prosecutrix was a minor girl, her date of birth as certified by the Principal of the school is 17.03.2006 and as such she was aged about 15 years at the time of the incident. It is argued that since there is a marks sheet of a school of the prosecutrix, the same would have prevalence over the certificate of the Chief Medical Officer, Chandauli.
After having heard learned counsel for the parties and perused the record, it is evident that the applicant is named in the first information report. There is an allegation against him of enticing away the minor daughter aged about 16 years of the first informant. The girl in her statement under section 161 and 164 Cr.P.C. has initially stated of her being in companionship of the applicant. In her second statement recorded under section 161 Cr.P.C. she has stated that the applicant established physical relationship with her, which was sexual assault on her. As per school marks sheet she is minor. The consent of a minor as argued on the basis of the first statements recorded under sections 161 and 164 Cr.P.C. of the prosecutrix, are of no substance. The judgment of Apex Court as relied upon by learned counsel for the applicant, was after a full fledged trial, in which the document were put to witnesses and they were cross-examined. The other judgment of the Division Bench of this Court is distinguishable on facts of the present case.
Looking to fact and circumstances of the case, nature of evidence and gravity of offence, I do not find it a fit case to release the applicant on bail.
Accordingly, the bail application is rejected.
Order Date :- 20.12.2021/VKG (Samit Gopal, J.)