# Ramshankar v. State of U.P

- **Citation:** (2022) 6 ILRA 1032
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-02
- **Case number:** Criminal Misc. Bail Application No. 12510 of 2019
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramshankar-v-state-of-u-p-48624
- **Pages:** 4

## Headnote

A. Stringent provisions of the P.O.C.S.O. Act can
be done away with under the extra-ordinary
circumstances of the case.

Application allowed. (E-12)

List of Cases cited:-
6 All. Ramshankar Vs. State of U.P.
1033

## Text

1032 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Learned A.G.A.-I has stated that
scheduled offences, whether investigated
by the National Investigation Agency or by
the investigating agencies of the State
Government, are to be tried exclusively by
Special Courts set up under the NIA Act.

Section 13(1) of the NIA Act,
which begins in a notion reads as under :-

"13. Jurisdiction of Special
Courts.-(1)
Notwithstanding
anything
contained in the Code, every Scheduled
Offence investigated by the Agency shall
be tried only by the Special Court within
whose local jurisdiction it was committed."

17. The aforesaid Section 13(1) of the
NIA Act begins with a non-obstante clause,
which
is
notwithstanding
anything
contained in the Code, read with Section
22(2)(ii), states that every Scheduled
Offence that is investigated by the
Investigation
Agency
of
the
State
Government is to be tried exclusively by
the Special Court within whose jurisdiction
it was committed.

18. When the cases pertaining to the
scheduled offence are to be tried by a
Special Court, then Section 21 of the NIA
Act would categorically apply to the case
and an appeal shall only lie to the said case,
before a division bench of the High Court.

19. Thus, it follows from the aforesaid
averments of the parties that the Special
Court in the State has been established vide
notification
no.
1002/VI-P-9-2131(75)/2017, and the bail application of the
applicant has been rejected by the Special
Court under NIA Act vide order dated
3.2.2022. No objection whatsoever, has
been raised by the applicant before the
designated court and the provisions of
Section 21(4) are applicable to the present
case. Furthermore, Section 6 of the NIA
Act has been complied with. The bail
application filed without jurisdiction before
this Court is, thus, not maintainable.

20. The bail application is dismissed
with a liberty to file an application for
appeal under Section 21 of the NIA Act
before the appropriate bench.

21. The counsel for the applicant shall
be returned the certified copies of the
orders and other relevant documents, after
keeping photocopies thereof, as per the
Rules of the Allahabad High Court.
----------
(2022)06ILR A1032
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.06.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 12510 of
2019

Ramshankar ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Mahesh Singh Yadav, Avdhesh Kumar
Singh Yadav, Ganga Sagar Mishra, Ratnesh
Singh Tomar

Counsel for the Opposite Party:
G.A., Munni Lal Yadav

A. Stringent provisions of the P.O.C.S.O. Act can
be done away with under the extra-ordinary
circumstances of the case.

Application allowed. (E-12)

List of Cases cited:-
6 All. Ramshankar Vs. State of U.P.
1033
1. Atul Mishra Vs St. of U.P. & ors. 2022(3) ALJ
78

2. Dataram Singh Vs St. of U.P. & anr. (2018)3
SCC 22
(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard learned counsel for the
applicant, learned A.G.A. for the State and
perused the material placed on record.

2. Applicant seeks bail in Case Crime
No.193 of 2019, under Sections 363, 366,
504, 506, 376 IPC & Sections 3/4 of
P.O.C.S.O. Act, Police Station Mitauli,
Distric

3. The counsel for the victim is
regularly absent since last so many dates.
The hearing cannot be stalled on account of
non cooperation of one counsel.

4. As per prosecution story, the
applicant is stated to have enticed away the
minor daughter of the informant in the
night of 16/17.05.2018 at about 2:00 am.
As per the allegations in the FIR, the date
of birth of the victim is stated to be
13.11.2004 and the applicant is stated to
have left her alone outside the village on
12.12.2018 i.e. after a period of about six
months. The victim was found pregnant at
that time and is stated to have given birth to
a female child on 31.12.2018.

5. Learned counsel for the applicant
has stated that he was madly love with the
victim and out of fear of the villagers had
eloped with the victim and had undergone
marriage in a temple although the said
marriage is not registered. Learned counsel
for the applicant has further stated that
although the statement of the victim
recorded under Section 164 Cr.P.C. is
against the applicant, but the same has been
garnered out of fear of the family members
of the girl. The applicant and the victim
belong to the same village and the same
community. He further argued that the
applicant proposes to rear his child as he is
the father and he is very much willing to
keep his married wife and the newborn
baby with him. Several other submissions
have been made on behalf of the applicant
to demonstrate the falsity of the allegations
made against him. The circumstances
which, as per counsel, led to the false
implication of the applicant have also been
touched upon at length. The applicant is
languishing in jail since 01.10.2019. In
case, the applicant is released on bail, he
will not misuse the liberty of bail. There are
no criminal antecedents of the applicant.

6. Per contra, Sri Girjesh Kumar
Dwivedi, learned A.G.A. has vehemently
opposed the bail application but has not
disputed the fact that out of the said union
of the couple, a baby girl was born on
31.12.2018 and she is more than three and
half years of age as present, who is being
taken care of by the parents of the victim,
although he has not disputed the fact that
the applicant has no criminal history.

7. The matter shatters the conscious
of one and all. What is the fault of the new
born baby who has come to world under
such circumstances?

8. Admittedly, as per the radiological
examination report, the age of the victim is
between 18-20 years, which is on record as
filed in supplementary affidavit dated
13.01.2022. Thus, the victim can be stated
to be major at the time of offence.

9. In this conservative and nonpermissive society, it is true that marriage
in the same village is prohibited and is not
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
customary, and it may be an after effect of
media and cinema. Instances of marriage in
the same village are on the rise. This does
adversely affect the social fabric. Both the
accused and the victim are of very young
age and have barely attained the age of
majority. A baby girl has been born out of
their wedlock. Though, the marriage may
not be described as per the law of the land,
but the Court has to apply a pragmatic
approach in such conditions and indeed
both the families are required to act
practically. A lot of water has flown down
the Ganges. Now, it's time to move ahead.

10. The youth in their tender age
become victim to the legal parameters
though rightly framed by the legislature,
but here this Court is being drawn to make
an
exception
in
the
extraordinary
circumstances of the case. The life of a
newborn child is at stake. She cannot to be
left to face the stigma during her life.

11. The mathematical permutations
and combinations have to be done away
with. A hypertechnical and mechanical
approach shall do no good to the parties
and why should an innocent baby out of no
fault of her bear the brutalities of the
society in the present circumstances.
Human psychosis and that too of the
adolescents has to be taken into account.

12. This Court in the case of Atul
Mishra vs. State of U.P. And 3 others1,
has also done away with the stringent
provisions of the P.O.C.S.O. Act under the
extra-ordinary circumstances of the case.

13. Keeping in view the nature of the
offence, evidence on record regarding
complicity of the accused, 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 another2, 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.

14. Let the applicant- Ramshankar,
who is involved in aforementioned case
crime 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.

(i) The applicant is being released
on bail on the assurance of the learned
counsel for the applicant that he is very
much willing to take care of his wife
(victim) and the infant. The applicant shall
deposit
(fixed
deposit)
a
sum
of
Rs.2,00,000/- in the name of new born
child of the victim till her attaining the age
of majority within a period of six months
from the date of release from jail.

(ii) The applicant shall file an
undertaking to the effect that he shall not seek
any adjournment on the date fixed for
evidence when the witnesses are present in
Court. In case of default of this condition, it
shall be open for the Trial Court to treat it as
abuse of liberty of bail and pass orders in
accordance with law.

(iii) The applicant shall remain
present before the Trial Court on each date
fixed, either personally or through his
counsel. In case of his absence, without
sufficient cause, the Trial Court may proceed
against him under Section 229-A IPC.

(iv) In case, the applicant misuses
the liberty of bail during trial and in order
6 All. Praveen Pal Vs. State of U.P.
1035
to secure his presence proclamation under
Section 82 Cr.P.C., may be issued and if
applicant fails to appear before the Court
on the date fixed in such proclamation,
then,
the
Trial
Court
shall
initiate
proceedings against him, in accordance
with law, under Section 174-A IPC.

(v) The applicant shall remain
present, in person, before the Trial Court on
dates fixed for (1) opening of the case, (2)
framing of charge and (3) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the Trial Court absence of
the applicant is deliberate or without
sufficient cause, then it shall be open for
the Trial Court to treat such default as
abuse of liberty of bail and proceed against
him in accordance with law.

In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.

It is made clear that observations
made in granting 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.
----------
(2022)06ILR A1035
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.04.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Misc. 2nd Bail Application No. 33746 of
2020

Praveen Pal ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Ravi Kumar Singh, Sri Mohit Singh, Sri
V.P. Srivastava (Senior Adv.)

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

The examination of material either by the
Forensic Analyst or Chemical Analyst is an
integral part of investigation which may provide
a link regarding the cause of death or give a
lead in the matter. The same is very relevant for
the proper investigation and even for the courts
judging the case in the trial. The chargesheets
are submitted without the reports of the
Forensic
Lab
or
Chemical
Analyst,
the
investigation cannot be said to be completed
without the report (s) of the experts to whom
materials 5 are sent for their opinion. As the
prosecution relies on the said part of evidence
also, it cannot be said that the investigation has
concluded in spite of the reports not being
received. A tendency has developed of filing of
the said reports of the experts through a
supplementary charge sheet at a much much
later stage. In the meantime the accused suffers
the rigorous of jail and explores the remedy
available to him for bail and even as per the
facts of the present case all the witnesses have
been examined in the trial but the said report is
still awaited in spite of a letter and it's reminder
by the concerned trial court to a responsible
officer of the laboratory for sending a report by
examining the contents out of turn. This system
cannot be given a knot. It has to be deprecated.
This Court apart from its inherent power has
power of superintendence also. It cannot shut
its eye to grave irregularities, when they are
brought to its notice or even comes to its
knowledge.

Application dismissed. (E-12)
(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri Ravi Kumar Singh,
learned counsel for the applicant and Sri
Sanjay Kumar Singh, learned counsel for
the State and perused the records.

2. Personal affidavit of Sri Ashok
Kumar, Deputy Director, Forensic Science