Allahabad High Court
Arsh Deep Singh vs State Of U.P. And 2 Ors. on 5 May, 2022
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11124 of 2020 Applicant :- Arsh Deep Singh Opposite Party :- State Of U.P. And 2 Ors. Counsel for Applicant :- Lalji Prasad Shukla,Anurag Singh Counsel for Opposite Party :- G.A.,Krishan Kumar Hon'ble Dinesh Kumar Singh,J.
1. Heard learned counsel for the parties and gone through the entire record.
2. By means of this application under Section 439 CrPC, the accused-applicant seeks bail in FIR No.0361 of 2020, under Sections 363, 366 and 376 IPC read with Section 3/4 POCSO Act and Section 67 I.T. Act lodged at Police Station Hargaon, District Sitapur.
3. Allegation against the accused-applicant is of enticing away the prosecutrix, aged around 15-16 years; the prosecutrix took along with her one samsung touch screen phone having airtel sim no.9044147804; the prosecutrix was recovered from residence of the accused-applicant i.e. Patiala, Punjab; the prosecutrix was medically examined after she was recovered; she gave statement to the doctor, who examined her, that she came out of her own house in mid-night on 23.08.2020 and she went along with the accused-applicant to Patiala, Punjab where she stayed with him as husband and wife; after police reached there, she came back to her parents; her hymen was found to be old torn and healed; however, there was no internal or external injury, which was noticed by the doctor; her medical age has been determined to be 17 years; the prosecutrix, in her statements recorded under Sections 161 and 164 CrPC, has not supported the prosecution case and said that three persons were blackmailing her after she posted her photograph on face-book; these three persons edited her photograph and written 'i love you'; once she posted her mobile number on face-book, these three persons started chatting with her over whatsapp also. It was further said that these three persons threatened and got her nude photograph posted on face-book. It is further said that when she felt so-much harassed, she spoke to the accused-applicant and the accused-applicant took her away from these three persons to Punjab. The prosecutrix has further said that the accused-applicant did nothing wrong with her.
4. Learned counsel for the accused-applicant submits that considering medical age of the prosecutrix and also the fact that it is well-settled that there can be margin of +/- two years in age medically determined and if two years is counted on higher side, the prosecutrix would be about 19 years of age. It is further submitted that the prosecutrix has not supported the prosecution case in her statements recorded under Section 161 and 164 CrPC and, therefore, the accused-applicant may be enlarged on bail.
5. On the other hand, Mr. G.D. Bhatt, learned Additional Government Advocate and Mr. Krishan Kumar, learned counsel for the complainant, have opposed the bail application and submitted that the prosecutrix was not major when she was enticed away by the accused-applicant; the accused-applicant took her in the car all the way to Punjab where he established physical relation with her; even consent would not be defence available to the accused-applicant and considering these, the accused-applicant should not be enlarged on bail.
6. I have considered the submissions made by the learned counsel for the parties.
7. Medical age of the prosecutrix has been determined to be 17 years. It is well established that there can be margin of +/-2 years in age medically determined and if two years is counted on higher side, the prosecutrix would be major on the date of incident. Further, the prosecutrix has not supported the prosecution case in her statements recorded under Sections 161 and 164 CrPC and considering these, I find it to be a fit case for grant of bail.
8. Let applicant-Arsh Deep Singh, accused of above-mentioned FIR/crime number, be released on bail on his furnishing a personal bond and two local and reliable sureties each in the like amount to the satisfaction of the Court concerned with the following conditions, which are imposed in the interest of justice:-
(i) the applicant(s) 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(s) 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(s) misuse(s) the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant(s) fail(s) 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; and
(iv) the applicant(s) 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
Order Date :- 5.5.2022 MVS/-