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Krishna <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="efa49a828e9dafad8e8d838080">[email&#xA0;protected]</a> Kushwaha vs State Of U.P.

High Court Of Judicature at Allahabad|22 August, 2019
Heard learned counsel for the applicant and learned A.G.A. for the State.
Submission that the applicant was earlier implicated under Sections 354, 354 (ka) I.P.C and 7/8 POCSO Act and he was enlarged on bail by this Court vide order dated 28.05.2018 in Criminal Misc. Bail Application No.18787 of 2018. Subsequently on the basis of the statement of the child victim Sections 376 and 9-M of POCSO were also added by the Investigating Officer and charge-sheet was submitted by the Investigating Officer before the Court below. This application has been moved for enlarging the applicant on bail under the added sections 376 I.P.C and Section 9-M of POCSO Act.
It has been submitted by the learned counsel for the applicant that the Investigating Officer has implicated the applicant under the aforesaid sections without any medical evidence. The mother of the victim refused to internal and external medical examination of the victim as clear from the report of Medico Legal Examination Report of Sexual Violence dated 22.03.2018 brought on record as Annexure 6 to the affidavit filed in support of the bail application, issued by Manyawar Kanshi Ram Combined Hospital & Trauma Centre, Kanpur Nagar. It has been submitted that in absence of any medical evidence the allegation cannot be justified. It has further been submitted that the applicant has been implicated on account of mala fide on the part of the informant. The applicant is the owner of the Dharmshala in the name of 'J. P. Dharmshala, Kanpur Nagar'. The father of the victim has made application to the Vice Chairman of the Kanpur Development Authority stating that the aforesaid Dharmshala should be sealed and proceedings under the Gangster Act should be initiated against the applicant because there are illegal activities being carried out in the aforesaid Dharmshala. On account of the dispute with the father of the victim, applicant has been implicated in this case. The applicant is in jail since 24.03.2018. The applicant has explained his criminal history in paragraph 5,6, 7 and 8 of the affidavit filed in support of the bail application.
On the other hand learned AGA has opposed the prayer for bail.
Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, submissions of the learned counsel for the parties noted herein above, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant Krishna Kumar @ Babloo Kushwaha involved in Case Crime No.236 of 2018, under Sections 376 IPC and Section 9-M of the Protection of Children from Sexual Offences Act, 2012, Police Station Barra, District- Kanpur Nagar be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which they are accused, or suspected of the commission of which they are suspected.
5. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.
Order Date :- 22.8.2019 SS
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