Allahabad High Court
Raja vs State Of U.P. on 13 August, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 18 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10028 of 2019 Applicant :- Raja Opposite Party :- State Of U.P. Counsel for Applicant :- Ram Kumar Dubey,Bharat Garg Counsel for Opposite Party :- G.A. Hon'ble J.J. Munir,J.
In compliance with the order of this Court dated 20.05.2019, a medico legal report by a Board of Doctors has been submitted to this Court in a sealed cover by C.J.M. Ghaziabad through a memo dated 24.05.2019, in turn enclosing therewith a report of the C.M.O. Ghaziabad dated 24.05.2019. The Medico Legal Report has been directed to be opened in the presence of the Court. Accordingly, it has been opened, exhibited, and made part of the record. The Medico Legal Report dated 24.05.2019, signed by C.M.O. and two others doctors constituting the Medical Board, comprising Senior Radiologist and a Dentist at the District M.M.G. Hospital, Ghaziabad have opined the age of the prosecutrix to be about 18 years, on the basis of an ossification test and her dental status.
Heard Shri Bharat Garg, learned counsel for the applicant and Indrajeet Singh Yadav, learned A.G.A. for the State.
This is a second bail application, the first bail application being Criminal Misc. Bail Application No.45650 of 2018 being rejected by this Court for want of prosecution.
This is an application for bail on behalf of the applicant, Raja in Case Crime No.624 of 2017, under Sections 363 and 376 IPC and Section 3/4 of the POCSO Act, Police Station Lone Border, District Ghaziabad.
Learned counsel for the applicant has invited the attention of the Court to the statement of the prosecutrix under Section 161 Cr.P.C., where it is said by the prosecutrix that the two had married in Court at Moradabad and the applicant had carnal relations with her. Attention of this Court has also been drawn to the statement of prosecutrix under Section 164 Cr.P.C., where there are allegations of forcibly taking the prosecutrix after administering some deleterious substance by four persons, including the applicant to Chandigarh but learned counsel for the applicant has pointed out that the allegations of forcible sex and taking her away as in her statement under Section 164 Cr.P.C. also show that the prosecutrix stayed with the applicant for three months, met his mother and sister. This part of the statement under Section 164 Cr.P.C. and her statement under Section 161 Cr.P.c. where she acknowledged marriage, learned counsel for the applicant submits, shows that it is a case of consent, where rape is ruled out.
Learned A.G.A. has opposed prayer for bail and submits that a perusal of the medico legal report regarding the prosecutrix's age shows that in the month of May, 2019, she has been medically estimated to be aged about 18 years. The occurrence is of the month of June, 2017. Shri Indrajeet Singh Yadav, learned A.G.A. submits that reckoning her age backward, the prosecutrix would certainly be a minor, aged about 16 years at the time of occurrence. Even if her consent is acknowledged, it is no consent in the eye of law as she is a minor and, therefore, incompetent to render her consent to a sexual act. Going by her statement it would be a case of statutory rape.
Considering the entire submissions, the facts and circumstances on record, the evidence appearing in the matter so far, and, in particular, the fact that the prosecutrix was a minor at the time of occurrence but without expressing any opinion on merits, this Court does not find it to be a fit case for bail at this stage.
The Bail Application, accordingly, stands rejected at this stage.
It is further directed that the trial before the concerned court below be concluded expeditiously, as early as possible preferably within six months from the date of receipt of a certified copy of this order, reckoned from the date of committal, if not already committed, in accordance with Section 309 Cr.P.C. and in view of principle laid down in the recent judgment of Hon'ble Supreme Court in the case of Vinod Kumar v. State of Punjab reported in (2015) 3 SCC 220, if there is no legal impediment.
It is made clear that in case the witnesses are not appearing, the concerned court shall to initiate necessary coercive measure to ensure their presence positively.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Let a copy of the order be certified to the court concerned for strict compliance.
Order Date :- 13.8.2019/Neeraj