Allahabad High Court
Dinesh Gupta vs State Of U.P. And 4 Others on 24 July, 2023
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:147186 Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32116 of 2023 Applicant :- Dinesh Gupta Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Sanjay Kumar,Rakesh Prasad Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J.
Shri Paritosh Kumar Malviya, learned AGA-I contends that the police authorities in compliance of the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served the bail application upon the victim/legal guardian as well as upon the CWC.
By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No.1065 of 2014 at Police Station-Bhaluani, District-Deoria under Sections 363, 366, 376, 372 IPC and Section 3/4 of the POCSO Act. The applicant is in jail since 07.06.2023.
The bail application of the applicant was rejected by the learned trial court on 28.06.2023.
The following arguments made by Shri Rakesh Prasad, learned counsel assisted by Shri Sanjay Kumar, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Paritosh Kumar Malviya, learned AGA-I from the record, entitle the applicant for grant of bail:
1. Learned counsel for the applicant contests the minority of the victim as depicted in the prosecution case.
2. The victim was wrongly shown as a minor in the F.I.R. as 15 years of age only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.
3. Learned counsel for the applicant contests the age of the victim set out in the prosecution case in light of the judgement of this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021) and on the following grounds:
(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.
(ii) The age of the victim was incorrectly got registered in the school records by the victim's parents to give her an advantage in life. The school certificate showing her age as 15 years, 7 months and 28 days is not reliable.
(iii) The victim in her statements under Section 161 Cr.P.C. and under Section 164 Cr.P.C. has asserted that she is 16-17 years and 18 years of age respectively.
(iv) The medical report drawn up to determine the age of the victim opines that she is between 18 years of age. The victim is in fact a major.
4. The delay in lodgment of the proceeding under Section 156(3) Cr.P.C. in the facts of the case is fatal to the prosecution case.
5. The victim in her statement under Section 164 Cr.P.C. has asserted that she got married to him of her own volition way back on 10.03.2013. The couple is blessed with three children.
6. Material contradictions in the FIR, statements of the victim under Section 161 and 164 Cr.P.C. discredit the prosecution case.
7. False and aggravated allegations were made in the statement under Section 161 Cr.P.C. at the behest of her parents to save the failing prosecution case.
8. Prosecution evidence does not connect the applicant with the offence.
9. The applicant does not have any criminal history apart from this case.
10. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to cooperate with the court proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.
In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant-Dinesh Gupta be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence or influence any witness during the trial.
(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
The order dated 28.06.2023 passed by the learned trial court rejecting the bail application record that the age of the victim as disclosed in her high school certificate is 15 years, 7 months and 28 days. The order also noticed that the medical report drawn up to determine her age opines that the age of the victim is 18 years. However, the said medical report was excluded from consideration and total reliance was placed on the educational certificates of the victim. The approach of the learned trial court was completely contrary to the law laid down by this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021).Clearly Monish (supra) was not referred to the learned trial judge.
The learned trial courts are under an obligation to independently examine the age of the victim in light of the judgement rendered by this Court in Monish (supra) and not exclude relevant factors from its consideration solely on the footing that the school certificate is the only conclusive document to determine the age of the victim under the POCSO Act.
A grave miscarriage of justice has resulted on account of failure of the learned court to discharge its duties in light of the law laid down in Monish (supra). However, it is clarified that the order shall not operate adversely to the learned judge in any manner.
Registry is directed to send a copy of this order to all the POCSO Courts through out the State of U.P. for due compliance and a copy of this order may be respectfully placed before the Hon'ble J.J. Act Committee and Hon'ble POCSO Act Committee as well as the Director, JTRI for kind consideration.
Order Date :- 24.7.2023 Ashish Tripathi