Allahabad High Court
Kamlesh Paswan vs State Of U.P. And 3 Others on 6 March, 2024
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:41039 Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43835 of 2023 Applicant :- Kamlesh Paswan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Girdhar Prasad Tripathi Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J.
Shri Shrawan Kumar Dubey, learned AGA 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. 39 of 2023 at Police Station- Baresar, District- Ghazipur under Sections 363, 366, 376 IPC and Section 5/6 of POCSO Act. The applicant is in jail since 30.06.2023.
The bail application of the applicant was rejected by the learned trial court on 19.09.2023.
The following arguments made by Shri Girdhar Prasad Tripathi, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Shrawan Kumar Dubey, learned AGA 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. 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 victim in her statements under Section 161 and Section 164 Cr.P.C. has asserted that she is 16 years of age.
(iii). Medical report drawn up to determine the age of the victim opines that she is about 18 years of age.
4. The incident occurred on 10.04.2023.
5. The FIR was got registered on 29.04.2023.
6. The delay in lodgment of the FIR in the facts and circumstances of the case is fatal to the prosecution case.
7. The victim and the applicant were intimate.
8. The F.I.R. is the result of opposition of the victim's family to the said relationship.
9. The victim in her statement under Sections 161 Cr.P.C. and 164 Cr.P.C. has admitted to intimacy with the applicant. She has further asserted that she eloped with the applicant to Ghazipur from thereon to Prayagraj and finally reached New Delhi. She has also stated that she got married with the applicant of her own volition and their marriage has been consummated. She has specifically stated that she had consensual physical relations with the applicant.
10. No allegation of rape or forceful assault has been made by the victim against the applicant.
11. Major inconsistencies in the F.I.R., statements of the victim under Section 161 Cr.P.C. and under Section 164 Cr.P.C. discredit the prosecution case.
9. The victim was never confined or bound down. She was at public places but never resisted the applicant nor raised an alarm. Her conduct shows that she was a consenting party.
10. Medical to corroborate the commission of rape has not been produced by the prosecution.
10. The applicant does not have any criminal history apart from this case.
11. 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- Kamlesh Paswan 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.
Before parting some observations have to be made in the facts of this case. The learned trial court has rejected the bail application of the applicant by considering the age of the victim as depicted in the school records. The age of the victim as opined in the medical report/ossification test scientifically drawn up to determine her age has been neglected from consideration. The said report clearly opines that the victim is above 18 years of age. The report was liable to be considered by the learned trial court in light of the judgement rendered by this Court in Monish (supra). But the trial court neglected to do so.
A copy of this order as well as a copy of the judgment in Monish (supra) shall be provided to the learned District Judge, Ghazipur, to ensure that the learned trial courts are guided by the law laid down.
It is clarified that the above observations shall not be construed adversely against any judicial officer.
Order Date :- 6.3.2024 Pravin