# Pushpendra Chauhan (In Jail) v. State of U.P

- **Citation:** (2022) 12 ILRA 680
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-29
- **Case number:** Criminal Misc. Bail Application No. 27563 of 2020
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pushpendra-chauhan-in-jail-v-state-of-u-p-47969
- **Pages:** 6

## Headnote

(A) Criminal Law - Bail - The Code of
Criminal Procedure, 1973 - Sections
161,164 , Section 2 (wa) - Victim -
Indian Penal Code, 1860 - Section
375,376D,506
-
Against
her
will
-
Without her consent - Protection of
Children from Sexual Offences Act, 2012
- Sections 5/6

Victim in touch with applicant - mobile
chatting - enticed her away - committed rape
to the victim - co-accused and unknown
person also committed rape - threatened to
kill her father and brother - on disclosing
their
identity
-
Investigating
Officer
exonerated other named accused persons in
the final report - charge-sheet filed against
applicant only - conversations between the
applicant and the victim - indicate proximity
between the two - one quilt and two packets
of condoms were recovered.(Para -3,12,16 )

HELD:- Consent can be obtained by putting
someone in fear or under pressure or by
persuasive influence or other more subtle
methods. Thus, the consent, if any, pales into
insignificance. Not a fit case for granting bail
to the applicant.(Para -20,22)

Bail application dismissed. (E-7)

List of Cases cited:-

## Text

680 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment for life; or c. minimum
sentence provided is not less than 10 years. If
the punishment provided for an offence is
life, then the custody period is extendable to
90 days irrespective of the fact that a
minimum sentence of 10 years is not
provided as in the case of an offence under
section 304-B of the I.P.C. Any offence for
which the sentence provided is more than 10
years, custody period would be extendable to
90 days.

33. The offences for which the accusedapplicants have been charge sheeted involve
intensive and extensive investigation as mindboggling financial fraud regarding siphoning
and misappropriation of public funds of
thousands of crores is involved in the present
case. The role of the accused-applicants was
required to be investigated deeply and further,
the offence is under sections 467 and 409 of
the I.P.C. provide punishment up to ''for life'
and, therefore, I am of the view that the
extended period of 90 days would be available
to the investigating agency for such an
offence. In view thereof, I do not find much
substance in the submissions of Sri S.C.
Mishra,
learned
Senior
Advocate.
The
accused-applicants did not get entitled to
default bail on an expiry of 60 days from the
date of their custody in the present case. The
present application thus is hereby rejected.
----------
(2022) 12 ILRA 680
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 27563 of
2020

Pushpendra Chauhan
 ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri
Mohit
Singh,Sri
Dhirendra
Kumar
Srivastava, Sri Rajiv Sisodia, Sri Sadaful
Islam Jafri, Sri N.I. Jafri

Counsel for the Opposite Partiy:
G.A., Sri Shivam Yadav

(A) Criminal Law - Bail - The Code of
Criminal Procedure, 1973 - Sections
161,164 , Section 2 (wa) - Victim -
Indian Penal Code, 1860 - Section
375,376D,506
-
Against
her
will
-
Without her consent - Protection of
Children from Sexual Offences Act, 2012
- Sections 5/6

Victim in touch with applicant - mobile
chatting - enticed her away - committed rape
to the victim - co-accused and unknown
person also committed rape - threatened to
kill her father and brother - on disclosing
their
identity
-
Investigating
Officer
exonerated other named accused persons in
the final report - charge-sheet filed against
applicant only - conversations between the
applicant and the victim - indicate proximity
between the two - one quilt and two packets
of condoms were recovered.(Para -3,12,16 )

HELD:- Consent can be obtained by putting
someone in fear or under pressure or by
persuasive influence or other more subtle
methods. Thus, the consent, if any, pales into
insignificance. Not a fit case for granting bail
to the applicant.(Para -20,22)

Bail application dismissed. (E-7)

List of Cases cited:-

1. Kalim Vs St. of U.P. & anr., Criminal revision
no. 568 of 2022

2. Sushil Kumar Vs Rakesh Kumar, (2003) 8 SCC
673

(Delivered by Hon'ble Krishan Pahal, J.)
12 All. Pushpendra Chauhan Vs. State of U.P.
681

1. Heard Sri Mohit Singh, learned
counsel for the applicant and Sri Shivam
Yadav, learned counsel for the informant as
well as Sri P.K. Srivastava, learned AGA
for the State and also perused the material
placed on record.

2. By means of the present bail
application, the applicant seeks bail in
Special Sessions Trial No. 291 of 2020
arising out of Case Crime No. 30 of 2020,
under Section 376D Indian Penal Code1
and Sections 5/6 of Protection of Children
from Sexual Offences Act, 20122, Police
Station-
Hasanpur,
District-
Amroha,
during the pendency of trial.

PROSECUTION STORY

3. The facts of the case in a nutshell
are that the victim was in touch with the
applicant through mobile chatting. On
17.01.2020, the victim had gone to the
house of her aunt and at about 06:30 PM,
she had gone to the crossing at Gajraula
and the applicant is stated to have enticed
her away on the pretext of giving her some
gifts on the promise that they shall return
within a period of one hour. On the way to
Hasanpur, the applicant is stated to have
taken her in a room near tubewell wherein
one unknown person was standing guard,
armed with a country made pistol and the
applicant is stated to have committed rape
to the victim. It is also alleged in the FIR
that after some time, the co-accused,
Jaiveer Chauhan and Kovind Chauhan and
the said unknown person are also stated to
have committed rape with the victim and
later on, threatened her to kill her father
and brother if she ever reveals their identity
to anyone. It is also alleged in the FIR that
the applicant had deleted all the chats from
the mobile phone of the victim at the time
of said incident. The victim is also stated to
have been threatened by the applicant of his
high connections in high echelons of the
society. Somehow the victim had contacted
her father and also dialled 100 number to
the police whereupon the police is stated to
have retrieved her. The FIR was lodged on
18.01.2020 at about 05:10 PM by the
victim/informant against the applicant and
co-accused
persons,
Jaiveer
Chauhan,
Kovind Chauhan and one unknown person
u/s 376D & 506 IPC and Section 5/6 of
POCSO Act.

RIVAL CONTENTIONS

4. Learned counsel for the applicant
has stated that the applicant has been
falsely implicated in the present case. The
victim is a consenting party. Learned
counsel has further stated that the FIR is
delayed by about eight hours and there is
no explanation of the said delay caused. It
is indicated in the FIR itself that the victim
had called the police in the morning itself
and she was retrieved by the police.
Learned counsel has further stated that as
per ossification test report, the age of the
victim was 18 years. Learned counsel has
stated that more often than not the age of
the wards is indicated much less by their
parents. To buttress his argument, learned
counsel has placed much reliance upon the
judgement of this Court passed in Kalim
Vs. State of U.P. and Another3 of which
the relevant para-11 of the judgement is
reproduced hereunder:-

"11. In Sanjeev Kumar Gupta
(supra), the credibility and authenticity of
the matriculation certificate for the purpose
of determination of age under Section 7(A)
of the Juvenile Justice Act, 2000 came up
for consideration. In the said case, the
Juvenile Justice Board had rejected the
claim of the juvenility and that decision of
682 INDIAN LAW REPORTS ALLAHABAD SERIES
the Juvenile Justice Board was restored by
the Hon'ble Apex Court by rejecting the
order of the Hon'ble High Court. It was
observed
therein
that
the
records
maintained by the C.B.S.C. were purely on
the basis of final list of the students
forwarded by the Senior Secondary School
where the juvenile had studied from Class 5
to 10 and not on the basis of any other
underlying documents. On the other hand,
there
was
clear
and
unimpeachable
evidence of date of birth which had been
recorded in the records of another school,
which the second respondent therein had
attended till class 4 and which was
supported by voluntary disclosure made by
the accused while obtaining both, Aadhaar
Card and driving license. It was observed
that the date of birth reflected in the
matriculation certificate could not be
accepted as authentic or credible. In the
said case, it was held that the date of birth
of the second respondent therein was
17.12.1995 and that he was not entitled to
claim juvenility as the date of the alleged
incident was 18.08.2015."
(Emphasis Added)

5. Learned counsel for the applicant
has also placed much reliance upon the
settled case law of the Apex Court in
Sushil Kumar vs. Rakesh Kumar4,
wherein it has been stated that it is more
often in the Indian Society that person
shows the age of their wards much below
than their actual age. Learned counsel has
vehemently argued that the final report of
the police categorically indicates that no
offence of rape has been committed by the
applicant and he has to be tried on account
of the age of minority of the victim. The
Apex Court in umpteen number of cases
has opined that a leverage of two years may
be granted to the applicant with respect to
the age referred in ossification test report.

6. Learned counsel for the applicant
has also stated that to date, no efforts have
been made and it has not been revealed as
to who was the unknown person who was
carrying a country made pistol and
threatened the victim at the time of offence.
At the time of submitting the final report
(charge-sheet), the Investigating Officer
was pleased to exonerate the co-accused
persons altogether from all the offences. As
per the CDRs, the said co-accused persons,
namely, Jaiveer Chauhan and Kovind
Chauhan were not found to be present at
the place of occurrence.

7. Learned counsel for the applicant
has
further
stated
that
even
the
Investigating Officer has not found the
applicant to have committed the offence
rather the applicant has been made an
accused only on the basis of age of
minority of the victim. Neither the injuries
sustained by the victim have been disclosed
in the FIR nor in her statements recorded
u/s 161 and 164 Cr.P.C. In the injury
report, no duration of the injuries has been
indicated which falsifies the prosecution
story. Learned counsel has also stated that
the injury report indicates that hymen
represented old healed tags meaning
thereby the victim was used to sexual
intercourse.

8. Learned counsel for the applicant
has placed much reliance on the detailed
chats of the victim and the applicant filed
with the supplementary affidavit indicating
their close contiguity.

9. Learned counsel has also placed
much reliance upon the statement of one
Smt. Neeraj who has categorically stated
that the applicant has been falsely
implicated in the present case at the behest
of one conman Chandra Mohan who runs
12 All. Pushpendra Chauhan Vs. State of U.P.
683
various institutions in the State of
Uttarakhand and Uttar Pradesh. The coaccused persons, Jaiveer and Kovind had
filed several applications against the
conman Chandra Mohan and the named
accused persons have been implicated due
to the said Chandra Mohan Maharaj who
himself is a history-sheeter. The coaccused person Jaiveer Chauhan is the
cousin of the applicant. The said conman
has misused his power and money by
foisting the present false case upon the
applicant and other co-accused persons
using victim as a conduit.

10. Learned counsel for the applicant
has further indicated that the police has
recovered two condom packets from the
place of occurrence at the instance of the
victim which indicates that the said act
committed, if any, was with the consent of
the victim.

11. Learned counsel for the applicant
has also stated that the impugned order
passed by the High Court on 30.3.2022
granting bail to the applicant is correct.
Learned counsel has also stated that the
Apex Court has not cancelled the bail of
the applicant rather has remanded back the
bail application to be re-heard on merits.
The Apex Court at the time of remanding
the matter back has even granted interim
protection to the applicant till 30.11.2022.
The applicant has no other criminal
history except two cases in which closure
report
has
already
been
filed
and,
therefore, the applicant deserves to be
released on bail. In case, the applicant is
released on bail, he will not misuse the
liberty of bail and shall cooperate with the
trial.

12. Per contra, Sri Shivam Yadav,
learned counsel for the informant has
vehemently opposed the prayer for bail
and has categorically stated at Bar that as
per the school certificate of the victim, her
age is 17 years and 4 months only. Her
date of birth is 10.9.2002 and as per her
medical report, her age is 18 years.
Learned counsel has further stated that as
per the settled law of the Apex Court, a
leverage of two years may be granted on
either side and why not, it should be read
on lower side. Learned counsel has placed
much reliance upon the recovery memo
dated 20.1.2020 which was taken from the
place of occurrence at the instance of the
victim herein wherein one quilt and two
packets of condoms were recovered in
which one was found empty and another
contained two unused condoms. The
recovery of condoms indicates towards the
commissioning of offence.

13. Learned counsel for the informant
has also placed much reliance upon the
medical report of the injured person
wherein the medical examination of the
victim
was
conducted
promptly
on
18.1.2020 at about 06:35 PM at the CHC
Hospital, Gajraula. The doctor had found
following injuries on the body of the
victim/injured but for the sake of brevity,
only the relevant part of injury is being
reproduced hereunder:-

External Examination -

Reddish
abrasion
over
both
chests Size- 2.5 cm × 2 cm each. Reddish
abrasion 2 cm × 1 cm over dorsal aspect of
Rt. Hand at the time of examination.

Internal Examination -

Lacerated wound 2 cm × 0.5 cm
× muscle deep over lower part of vagina at
6 O' clock position.
684 INDIAN LAW REPORTS ALLAHABAD SERIES

Reddish contusion over inner part
of vagina at the time of examination.

Hymen represented by old healed
tags.

14. Learned counsel for the informant
has also stated that the said injuries indicate
the resistance by the victim at the time of
commissioning of the said offence with her.
Learned counsel has also stated that in the
ossification test report of the victim, it has
been observed that sternal end of clavicle
bone epiphysis appeared but not fused
which indicates that the age of the victim is
below 18 years and, thus, corroborated by
her age certificate.

15. Learned AGA has also opposed
the prayer for bail and has stated that the
learned Special Judge at the stage of taking
cognizance has summoned the exonerated
accused persons Jaiveer Chauhan and
Kovind Chauhan as well. Thus, the bail
application of the applicant deserves to be
rejected.

CONCLUSION

16. It is true that the Investigating
Officer has exonerated the other named
accused persons in the final report (chargesheet) filed against the applicant only. It
has been indicated in the said final report
that
the
conversations
between
the
applicant and the victim indicate proximity
between the two. The final report has been
filed owing to the age of the victim falling
below 18 years, the legal age of the
consent.

17. For the sake of verbiage, only the
relevant part of the definition of rape is
being discussed hereinafter. The offence of
rape is defined u/s 375 IPC as sexual
intercourse under the circumstances falling
under
any
of
the
following
seven
descriptions -

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- ....

...

18. It is not without reason that both
the phrases are put in separately in the
definition of rape. Consent can be obtained
by putting someone in fear or under
pressure or by persuasive influence or other
more subtle methods.

19. It is not without reason that the
word "consent" is prefixed with "without"
and the word "willingness" is prefixed with
"against".

20. The age of the victim is just above
17
years,
her
date
of
birth
being
10.09.2002. Thus, the consent, if any, pales
into insignificance. In addition to it even if,
as suggested by the learned counsel for the
applicant,
the
consent
is
presumed,
willingness was absent as is amply
indicated by the medical examination
report of the victim. The nature, the seat of
injury just deflates the claim of defence that
it was not rape.

21. The Courts are under duty to deal
with cases of such nature with utmost
responsibility and sensitivity. It is impudent
to look for expression willingness or
unwillingness. The act was resisted by her
is too obvious by the medical report and
that brings the act within the definition of
rape as it was against her will. It is true that
the liberty of the applicant is at stake but
the Courts have to look into the larger
interest of the society as well and even the
12 All. Ramesh Rai @ Matru Rai Vs. State of U.P.
685
interest of the victim/accuser has also to be
taken into consideration as of late even the
role of the victim has been accorded a
wider view in light of the amendment in the
Cr.P.C. by adding the definition of victim
u/s 2(wa).

22. Considering the rival submissions
adduced by the learned counsel for the
parties, the facts of the case, evidence
adduced and also considering the nature of
offence, I do not find it a fit case for
granting bail to the applicant.

23. Accordingly, the application is
found devoid of merits and is dismissed.

24. The Trial Court is expected to
expedite the trial of the case and conclude
it in accordance with law, preferably within
a period of one year from the date of this
order, if there is no other legal impediment.

25. It is also made clear that
observations made in dismissing the bail to
the applicant shall not in any way affect the
learned
trial
Judge
in
forming
his
independent
opinion
based
on
the
testimony of the witnesses and evidence on
record.
----------
(2022) 12 ILRA 685
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Bail Application No. 46497 of
2022

Ramesh Rai @ Matru Rai
 ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party
Counsel for the Applicant:
Sri Ran Vijay Singh, Sri Atharva Dixit, Sri
Praveen Kumar Singh, Sri Manish Tiwari
(Sr. Adv.)

Counsel for the Opposite Party:
G.A., Sri Ajay Singh

(A) Criminal Law - Gangsters bail - The
Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986 - Section
3
(1)
-
Penalty,
Section
19
(4)
-
opportunity to the public prosecutor to
oppose the application for release of a
person on bail - no provision giving such
right to any person other than the Public
Prosecutor , The Uttar Pradesh Regulation
of Money-Lending Act, 1976 - Sections 10
(i), 10 (ii), 22 and 23 , Indian Penal Code,
1860 - Sections 448, 386, 504, 506, 420,
120-B, 34 - unless an allegation is there
concerning an act or omission on the part
of an accused, covered by the definition of
the term "gang" or "gangster", no F.I.R.
should be maintainable - Whether the
allegations are true or false will be a
matter for investigation, but unless the
allegations of an offence under the Act are
indicated, as F.I.R. may not be justifiable
whatever large the number of past acts be
alleged against him. (Para -6,32)

Application - seeking release of applicant on bail
- allegation - member of a gang - engaged in
commission of several offences - gang-chart -
terror of gang - no person comes forward to
lodge a complaint - informant not only filed an
F.I.R. against applicant - even come to oppose
bail application of applicant in present case -
applicant implicated in present case merely
because he has a criminal history - applicant
languishing in jail. (Para -19,33,34)

(B) Criminal Law - The Uttar Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986 - for booking a
person under the provisions of the Act, the
authorities have to be prima facie satisfied
that a person has acted - Provisions of the
Act cannot be used as a weapon to wreak
vengeance
or
harass
or
intimidate