Allahabad High Court
Shiv Kumar Saroj vs State Of U.P. And 3 Others on 22 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40080 of 2022 Applicant :- Shiv Kumar Saroj Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ram Shiromani Shukla,Anubhav Shukla,Rahul Kumar Tripathi Counsel for Opposite Party :- G.A.,Amrendra Nath Rai,Sanjay Singh Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned Counsel for the applicant, learned counsel for the first informant as well as learned A.G.A. and perused the record.
The accused- applicant is involved in Case Crime No. 98 of 2022, under Sections 376, 363, 366 I.P.C. and section 3/4 POCSO Act, Police Station Mau Aima, District- Prayagraj.
It is submitted by the learned counsel for the applicant that the incident is dated 28.2.2022 at 8.00 p.m. while the FIR has been lodged on 5.3.2022. Recovery of the victim is dated 21.3.2022. The statements of the victim under sections 161 Cr.P.C. and 164 Cr.P.C. and the version of the FIR are consistent that she had gone with the applicant on her own volition, solemnized marriage and established physical relations with the applicant. The marriage certificate of Arya Samaj dated 8.3.2022 is also placed before the court to show that the parties have solemnized marriage. The victim has refused from her internal medical examination. As per the medical report, the age of the victim is found to be 18 years. The applicant is languishing in jail since 13.7.2022, hence, the prayer for bail is made.
Per contra learned counsel for the first informant has opposed the prayer of bail and submitted that the victim was 15 years of age on the date of the incident. Further, the attention of the court is drawn towards the statement of the Principal of the school who has proved the transfer certificate in his statement dated 22.3.2022. It is further argued that after the applicant and the victim eloped from the house, the victim appeared before this court for stay of his arrest and when the learned counsel for the first informant appeared and pointed out that forged documents regarding the age proof of the victim were being filed by the applicant, then the petition was withdrawn by the applicant and the victim. Later on, the FIR was challenged by the applicant and the victim by way of filing a writ petition which was dismissed by this court vide order dated 29.4.2022, wherein the same document regarding the age proof of the victim was produced. The division bench of this court observed that when the victim had obtained education and a certificate, in this regard is available, there was no justification of conducting ossification test of the victim. It was further observed that the report of ossification test cannot be looked into because an ossification test is only an assumption of the age and not the primary consideration to be relied upon for determining of majority of the alleged victim and observing this finding the victim was found to be minor and the petition was dismissed. It is further argued that as the victim was minor, so she was sent to Nariniketan, as she was not ready to live with her parents. Later on when she expressed her willingness only then she was given in the custody of her parents.
From the perusal of the record, it is found that the victim appears to be a consenting party from her statements under section 161 Cr.P.C. and 164 Cr.P.C. and the marriage certificate placed before the court. As per the medical report, the age of the victim is found to be 18 years. While regarding the age of the victim, the learned counsel for the first informant has placed the transfer certificate of the victim before the court, which is dated 14.3.2022, wherein the date of birth of the victim is mentioned as 1.1.2007, according to this date of birth the victim was minor ( 15 years) on the date of incident. Though it is argued by the learned counsel for the applicant that transfer certificate is dated 14.3.2022 while the Investigating Officer in his case diary dated 11.3.2022 has referred to this transfer certificate which was not possible as the transfer certificate was issued on 14.3.2022 only. Further it is argument that the victim had studied in the school, issuing transfer certificate for two years only and before that she is said to have not taken any education from any school. Thus, issuance of this certificate is challenged. However, learned counsel counsel for the first informant argued that in practice the Investigating Officers collect all the evidence and then the whole case diary is written in one go but it not written on every date. If we go through the record, in support of this transfer certificate the statement of the Principal concerned was also recorded on 22.3.2022 wherein he has verified this transfer certificate which shows the age of the victim to be 15 years on the date of the incident.
Thus, after perusing the record in the light of submissions advanced at the bar, taking overall view of the facts and circumstance of the case, the nature of accusation and the period of detention already undergone without commenting on the merit of the case, I do not find it a fit case for bail.
The bail application of the applicant is, accordingly, rejected.
Order Date :- 22.12.2022 Gss