# Bhootnath (In Jail) v. State of U.P. & Anr

- **Citation:** (2021) 9 ILRA 4
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-26
- **Case number:** Crl. Misc. Bail Application No. 22078 of 2021
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhootnath-in-jail-v-state-of-u-p-anr-47588
- **Pages:** 3

## Headnote

A. Criminal Law - The Protection of
Children from Sexual Offences Act, 2012 -
The Court has rejected the bail application on
seeing the gravity of the offence, severity of the
punishment and the manner in which the
applicant alleged to have committed rape on the
minor girl. (Para 7)

Bail Application Rejected. (E-10)

List of Cases cited:

## Text

4 INDIAN LAW REPORTS ALLAHABAD SERIES
bail, the following factors among other
circumstances are required to be considered
by the Court:

1. The nature of accusation and
the severity of punishment in case of
conviction and the nature of supporting
evidence;

2. Reasonable apprehension of
tampering with the witness or apprehension
of threat to the complainant; and

3. Prima facie satisfaction of the
court in support of the charge.

16. It is well settled that, among other
circumstances, the factors to be borne in
mind while considering an application for
bail are:

(i) whether there is any prima
facie or reasonable ground to believe that
the accused had committed the offence;

(ii) nature and gravity of the
accusation;

(iii) severity of the punishment in
the event of conviction;

(iv)
danger
of
the
accused
absconding or fleeing, if released on bail;

(v) character, behaviour, means,
position and standing of the accused;

(vi) likelihood of the offence
being repeated;

(vii) reasonable apprehension of
the witnesses being influenced; and

(viii) danger, of course, of justice
being thwarted by grant of bail.

17. Keeping in view the law laid
down in catena of decisions upon use of
discretionary power of grant of bail and
also
considering
the
nature
of
the
allegations; the impact of release of such
accused, having chequered history, on
witnesses and family of victim, gravity of
offence, and the evidence collected during
investigation, applicant's involvement that
too from the jail cannot be ruled out in the
present case, hence, prima facie no case for
grant of any indulgence is made out.

18.
 Application
is
accordingly
rejected.
----------
(2021)09ILR A4
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2021

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Crl. Misc. Bail Application No. 22078 of 2021

Bhootnath ...Applicant (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Amit Kumar Srivastava

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - The Protection of
Children from Sexual Offences Act, 2012 -
The Court has rejected the bail application on
seeing the gravity of the offence, severity of the
punishment and the manner in which the
applicant alleged to have committed rape on the
minor girl. (Para 7)

Bail Application Rejected. (E-10)

List of Cases cited:

1. Ms. Eera through Dr. Manjula Krippendorf Vs.
State (Govt. of NCT of Delhi) AIR 2017 SC 3457

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. Heard Mr. Amit Kumar Srivastava,
learned counsel for the applicant, Mr.
9 All. Bhootnath Vs. State of U.P. & Anr.
5
Rabindra Kumar Singh, learned Additional
Government Advocate assisted by Mr.
Rajmani Yadav, brief holder representing
the State and perused the record of the case.

2. By means of this application,
applicant-Bhootnath, who is involved in
Case Crime No. 84 of 2019, under sections
376, 323, 363 IPC and section 3/4 of The
Protection
of
Children
from
Sexual
Offences Act, police station Jafarganj,
district Fatehpur, seeks enlargement on bail
during the pendency of trial.

3. As per prosecution case, in brief,
the
first
information
report
dated
01.06.2019 has been lodged by informant-
Keshanlal Sonkar under section 363 IPC
against unknown person alleging inter alia
that on 01.06.2019 at about 4.00 a.m. her
daughter, whose date of birth is 12.10.2002
had gone to attend the call of nature, but
did not return home.

4. It is submitted by learned counsel
for the applicant that the applicant is
absolutely innocent and has falsely been
implicated in the present case with some
ulterior motive. The FIR has been lodged
against unknown person. It is further
submitted by learned counsel for the
applicant that as per medical examination
report of the victim, she is about 18 years.
The medical examination report does not
support the prosecution story. It is next
submitted by the learned counsel for the
applicant that the applicant is well
acquainted with the family members of the
victim and he used to come to her house,
therefore, the victim has developed illicit
relations with the applicant and as such she
was consenting party with the applicant.
There are contradictions in the statements
of the victim recorded under sections 161
and
164
Cr.P.C.
As
per
medical
examination report of the victim, no injury
has been found on her body. It is also
submitted that the applicant has no criminal
antecedent to his credit and is facing
detention since 05.07.2019. It is next
contended that there is no chance of the
applicant of fleeing away from the judicial
process or tampering with the prosecution
evidence. Learned counsel for the applicant
lastly submitted that if the applicant is
released on bail, he will not misuse the
liberty of bail and will cooperate in the
early disposal of the case.

5. Per contra, learned Additional
Government Advocate has opposed the bail
prayer of the applicant by contending that
the applicant is well acquainted with the
family members of the victim and had used
to come to the house of the informant. The
applicant is a sage and it is not expected by
a sage of committing such a heinous crime
with a girl, who has reverence and faith on
him. The victim was recovered after one
month on 02.07.2019 from the possession
of the applicant (Bhootnath alias Ramdas
alias Babaji) from district Jamnagar,
Gujarat with the help of local police of
Jamnagar. The applicant was arrested on
02.07.2019 and after obtaining transit
remand order dated 02.07.2019 from the
court
of
Chief
Judicial
Magistrate,
Jamnagar, he was brought and produced on
05.07.2019 before the concerned court of
district-Fatehpur, U.P. In her statement
under sections 161 and 164 Cr.P.C. the
victim has stated that she has been forcibly
enticed away by the applicant and also
made allegation of committing rape upon
her against the applicant. She has also
stated in her statement under section 161
Cr.P.C. that the applicant used to give her
some medicines, due to which she fallen
asleep. It is also alleged by the victim that
the accused also assaulted her by danda and
6 INDIAN LAW REPORTS ALLAHABAD SERIES
chimta (tong). As per FIR and her Aadhar
Card, victim is minor, as her date of birth is
12.10.2002. On 05.07.2019, sections 376,
323 IPC and 3/4 of Protection of Children
from Sexual Offences Act were added by
the Investigating Officer. It is next
contended by the learned A.G.A. that it is a
heinous crime. It is next argued that
absence of injuries on private part or other
part of body of victim would not rule out
her being subjected to rape. Lastly, it is
submitted that the innocence of the
applicant cannot be adjudged at pre trial
stage therefore, the applicant does not
deserve any indulgence. In case, the
applicant is released on bail, he will misuse
the liberty of bail.

6. As per section 2(1)(d) of the
Protection
of
Children
from
Sexual
Offences Act 2012, "Child" means any
person below the age of eighteen years. The
Apex Court in the matter of Ms. Eera
through Dr. Manjula Krippendorf vs State
(Govt. of NCT of Delhi) and another,
reported in AIR 2017 SC 3457 has held that
use of word "age" in section 2(1)(d) of
Protection
of
Children
from
Sexual
Offences
Act
only
includes
biological/physical age and not mental age
of child. The degree of understanding of
child can never be put in straight jacket
formula. In this case, a heinous crime of
kidnapping and rape has been committed
with a child/girl by the accused, who is a
sage (Baba) aged about 50 years and was
known to victim's father and used to visit
her house, ergo he must suffer for its
consequences. On account of these kind of
incidents, faith and trust on the person is
decreasing. A rapist not only violates the
victim's personal integrity, but leaves
indelible marks on the very soul of the
helpless female. In this case, a hapless girl
had been ravished by the accused. The act
of sexual assault induces trauma and horror
for any girl or regardless of her social
position in the society. A child/girl, who is
the victim of sexual assault, is not an
accomplice to the crime, but is victim of
another person's lust and therefore, her
statement need not be tested at this stage
with the same amount of suspicion as that
of accomplice. As a matter of fact, the
crime is not only against the victim, it is
against the whole society as well. It
demands just decision from the Court and
to such demand, the Courts of law are
bound
to
respond
within
the
legal
parameters.

7.

Considering
the
facts
and
circumstances of the case, submissions
advanced on behalf of parties, gravity of
the offence, severity of the punishment and
the manner in which the offence has been
committed, I do not find any good ground
to grant bail to the applicant.

8. Accordingly, the bail application is
rejected.

9. However, it is clarified that the
observation, if any, made herein above shall
be strictly confined to the disposal of the
bail application and must not be construed
to have any reflection on the ultimate
merits of the case.
----------
(2021)09ILR A6
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, .J.
THE HON'BLE SHAMIM AHMED, J.

Criminal Misc. Writ Petition No. 642 of 2021
and other connected cases