# Sandeep Kumar v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 56
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-16
- **Case number:** Criminal Misc. Bail Application No. 10246 of 2022
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-kumar-v-state-of-u-p-ors-50691
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 174-A, 229-A, 363, 366, 376(3) &
504 - Protection of Children from Sexual
offences (POCSO) Act,2012 - Sections 5 &
6 - Criminal Procedure Code,1973 -
Sections 82, 164 & 313 - Evidence Act,
1872 - Section 35- Bail Application - FIR -
offence of Kidnapping, abducting, inducing
women to compel her marriage as well as Rape
- Charge-sheet - Bail application - court finds
that, plea has been taken by complainant that
as per school leaving certificate, age of
prosecutrix is below 16 years therefore, it is
presumed that she is minor - held, without
expressing any opinion on merits of case and
after considering the argument that as per
medical report as well as Parivar register, age of
the prosecutrix is found to be 18 years and
St.ment of prosecutrix under section 164 Cr.P.C.
indicates that it is a case of consent and
argument that applicant having no criminal
history is languishing in jail since and looking to
law points cited above, Court of opinion that
applicant is entitled to be released on bail -
direction issued, accordingly. (Para - 7, 8, 9)

Bail Application disposed of. (E-11)

List of Cases cited:

## Text

56 INDIAN LAW REPORTS ALLAHABAD SERIES

26. With the aforesaid observations/
directions, the application stands disposed
of.
----------
(2023) 8 ILRA 56
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.08.2023

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Misc. Bail Application No. 10246 of
2022

Sandeep Kumar ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Bhoomika Bajpai, Chandra Bhanu Singh,
Prashant Singh, Rahul Kumar Shukla

Counsel for the Opposite Parties:
G.A., Dilip Kumar Pandey

Criminal Law - Indian Penal Code,1860 -
Sections 174-A, 229-A, 363, 366, 376(3) &
504 - Protection of Children from Sexual
offences (POCSO) Act,2012 - Sections 5 &
6 - Criminal Procedure Code,1973 -
Sections 82, 164 & 313 - Evidence Act,
1872 - Section 35- Bail Application - FIR -
offence of Kidnapping, abducting, inducing
women to compel her marriage as well as Rape
- Charge-sheet - Bail application - court finds
that, plea has been taken by complainant that
as per school leaving certificate, age of
prosecutrix is below 16 years therefore, it is
presumed that she is minor - held, without
expressing any opinion on merits of case and
after considering the argument that as per
medical report as well as Parivar register, age of
the prosecutrix is found to be 18 years and
St.ment of prosecutrix under section 164 Cr.P.C.
indicates that it is a case of consent and
argument that applicant having no criminal
history is languishing in jail since and looking to
law points cited above, Court of opinion that
applicant is entitled to be released on bail -
direction issued, accordingly. (Para - 7, 8, 9)

Bail Application disposed of. (E-11)

List of Cases cited:

1. Monish Vs St. of U.P. & ors., Criminal Misc.
Bail Application No.55026 of 2021

2. P. Yuvaprakash Vs St. Rep. by Inspector of
Police, 2023 LiveLaw (SC) 538.

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard Shri Prabhat Kumar Mishra,
Advocate holding brief of Shri Rahul
Kumar Shukla, learned counsel for the
applicant, Shri Rajesh Kumar Singh,
learned AGA-I for the State and Shri Dilip
Kumar Pandey, learned counsel for the
complainant and perused the record.

2. The present bail application has
been filed by the applicant Sandeep Kumar
with a prayer to enlarge him on bail in Case
Crime No.055 of 2022, under Sections-363,
366, 376(3) I.P.C., and Section 5/6 of The
Protection
of
Children
from
Sexual
offences (POCSO) Act, Police Station -
Shivratanganj, District Amethi.

3. Learned counsel for the applicant
has submitted that the First Information
Report was lodged by mother of the
prosecutrix under Sections 363, 504 IPC on
06.04.2022. As per version of the First
Information Report, she has stated that her
daughter was missing. She further stated
that she had gone to the house of Kusma,
wife of Vinay Rawat and asked whereabout
of her daughter but she was scolded by her
and her family members.

4. Learned counsel submitted that the
prosecutrix was recovered after one month
8 All. Sandeep Kumar Vs. State of U.P. & Ors.
57
26 days and in her statement recorded
under Section 164 Cr.P.C., she has deposed
that she had gone to Haryana with the
applicant out of her own free will. She has
performed marriage in the temple and used
to reside with the applicant as his wife. She
has further deposed that police had taken
her in custody on 28.05.2022 and took her
to Raebareilly Station and deposed that she
did not want to contest the case.

5. Learned counsel further submitted
that the prosecutrix refused for internal
medical examination. As per ossification
test, it was found that the prosecutrix was
more than 18 years and was major. It is
further submitted that as per Pariwar
register, the date of birth of the applicant is
recorded as 2004 and she is more than 18
years of age. Learned counsel for the
applicant has submitted that though school
leaving certificate indicates the date of
birth as 12.05.2006 and appears to be minor
but looking to the other relevant documents
i.e. Pariwar Register and ossification test, it
is evident that the prosecutrix is more than
18 years of age. Learned counsel submitted
that it is a case of consent and as per the
statement of the prosecutrix, it has come on
record that she has performed marriage
with applicant and she had gone along with
the applicant to Haryana.

6. In support of his contention,
learned counsel for the applicant has placed
reliance upon a judgment of the Apex Court
reported in 2023 LiveLaw (SC) 538 P.
Yuvaprakash vs. State Rep. by Inspector
of Police. The relevant para nos. 14 and 19
of the judgment are quoted below :

"14. Section 94 (2)(iii) of the JJ
Act clearly indicates that the date of birth
certificate from the school or matriculation
or equivalent certificate by the concerned
examination board has to be firstly
preferred in the absence of which the birth
certificate issued by the Corporation or
Municipal Authority or Panchayat and it is
only thereafter in the absence of these such
documents the age is to be determined
through "an ossification test" or "any other
latest medical age determination test"
conducted on the orders of the concerned
authority, i.e. Committee or Board or
Court. In the present case, concededly, only
a transfer certificate and not the date of
birth
certificate
or
matriculation
or
equivalent certificate was considered. Ex.
C1, i.e, the school transfer certificate
showed the date of birth of the victim as
11.07.1997.
Significantly,
the
transfer
certificate was produced not by the
prosecution but instead by the court
summoned witness, i.e., CW-1. The burden
is always upon the prosecution to establish
what it alleges; therefore, the prosecution
could not have been fallen back upon a
document which it had never relied upon.
Furthermore,
DW-3,
the
concerned
Revenue Official (Deputy Tahsildar) had
stated on oath that the records for the year
1997 in respect to the births and deaths
were missing. Since it did not answer to the
description of any class of documents
mentioned in Section 94 (2)(i) as it was a
mere transfer certificate, E C-1, could not
have been relief upon to hold that M was
below 18 years at the time of commission of
the offence."

......

19. It is clear from the above
narrative that none of the documents
produced during the trial answered the
description of "the date of birth certificate
from the school" or "the matriculation or
equivalent certificate" from the concerned
examination board or certificate by a
corporation, municipal authority or a
Panchayat. In these circumstance, it was
58 INDIAN LAW REPORTS ALLAHABAD SERIES
incumbent for the prosecution to prove
through
acceptable
medical
tests/examination that the victim's age was
below 18 years as per Section 94 (2)9iii) of
the JJ Act. PW-9, Dr. Thenmozhi, Chief
Civil Doctor and Radiologist at the
General Hospital at Vellore, produced the
X-ray reports and deposed that in terms of
the examination of M, a certificate was
issue stating " that the age of the said girl
would be more than 18 eyars and less than
20 years". In the cross examination, she
admitted that M's age could be taken as 19
years. However, the High Court rejected
this evidence, saying that "when the precise
date of birth is available from out of the
school records, the approximate age
estimated by the medical expert cannot be
the determining factor". This finding is, in
this court's considered view, incorrect and
erroneous. As held earlier, the documents
produced, i.e., a transfer certificate and
extracts of the admission register, are not
what Section 94(2)(i) mandates; nor are they
in accord with Section 94 (2)(ii) because DW1 clearly deposed that there were no records
relating to the birth of the victim, M. In these
circumstances, the only piece of evidence,
accorded with Section 94 of the JJ Act was
the medical ossification test, based on several
X-rays of the victim, and on the basis of
which PW-9 made her statement. She
explained the details regarding examination
of the victim's bones, stage of their
development and opined that she was
between 18-20 years; in cross examination
she said that the age might be 19 years.
Given all these circumstances, this Court is of
the opinion that the result of the ossification
or bone test was the most authentic evidence,
corroborated by the examining doctor, P-9."

7. Learned counsel for the applicant
has also placed reliance upon the judgment
in the case of Monish vs. State of U.P. and
others passed by the coordinate Bench of
this
Court
in
Criminal
Misc.
Bail
Application No.55026 of 2021. He has
relied upon para Nos.12, 13, 14, 15, 43, 54
to 67, 59, 60, 91 92, 93, 94. The relevant
para
nos.
54
and
93
are
quoted
hereasunder:

"54. With the advantage of good
authorities, the discussion on this issue can
now be concluded with the following
summation:

1.
The
presumptions
contemplated by law may vary from statute
to statute as regards their nature and
manner of applicability.

2.
Application
of
the
presumptions contemplated in statutes does
not preclude the courts from considering
peculiar facts and circumstances of a case,
nor do they compel the courts to accept the
prosecution version as a gospel truth
without due application of mind.

3. The stage and manner in which
the presumption shall apply will depend on
the
statutory
scheme,
facts
and
circumstances of a case and the nature of
evidence.

4.
All
presumptions
are
rebuttable. A challenge can weaken or
rebut the presumption.

5. The presumptions shall be
applied in a manner that they are consistent
with the first principles of fair trial in
criminal jurisprudence and due process in
constitutional processual jurisprudence.

6. The condition precedent for
triggering the presumption is that the
primary or foundational facts have to be
established by the prosecution by attaining
standard of evidence which is beyond
reasonable doubt and in accordance with
law.

7. Presumptions created in a
statute will be attracted by the following
8 All. Sandeep Kumar Vs. State of U.P. & Ors.
59
process. In the first instance after the
primary or foundational facts have to be
established by applicable standards of
evidence. At this stage, the accused will be
alerted
to
his
right
to
assail
the
presumption. The accused has to be
afforded an opportunity to rebut the
presumption. After these prerequisites are
satisfied, the presumption may ripen into
an established fact and made the basis of a
judicial finding upon consideration of
evidences in the facts and circumstances of
a case.

7. The manner and stage of
triggering the presumption regarding age
related documents under Section 94 of the
JJ Act for a juvenile offender shall differ
from the case of a minor victim and against
an adult accused under the POCSO Act.

8. Prematurely triggering the
presumptions under Section 94 of the JJ
Act, 2015 and Section 29 of the POCSO
Act, 2012 or inappropriately applying them
at the stage of bail will violate the law and
cause miscarriage of justice.

93. In wake of the preceding
narrative, the manner of consideration of
age of a victim in a bail application under
the POCSO Act shall be guided as follows:

I.
The
procedure
for
determination of a victim's age provided in
Section 94 of the JJ Act, 2015 read with JJ
Rules, 2016 shall not apply to bail
applications, though the documents therein
are liable to be considered. Age of victim as
per procedure prescribed in Section 94 of
the JJ Act, 2015 is determined conclusively
only in the trial.

II. The line of enquiry and
relevant factors to assess the age of the
victim in a bail application under the
POCSO Act offences are these. The
consideration of the age related documents
mentioned in Section 94 of the JJ Act, 2015
i.e.
school
certificate
(including
matriculation), date of birth certificate
issued by a local body, and medical report
for age determination as produced by the
prosecution is a good start point in the
process.

III. The accused has a right to
assail the veracity of the age of the victim
as stated in the prosecution case.

IV. The court while deciding the
said bail application is obligated to
independently:

A. Examine the challenge laid to
the victim's age by the accused applicant.

B. Evaluate credible doubts about
the age of the victim.

V. The assessment of age in a bail
order is of a tentative nature, and is based
on probative value of documents which are
yet to be proved or statements of witnesses
who are still to be examined in court. Such
determination by a court is not conclusive
and is made only for the limited purpose
for deciding the bail application.

VI. Same parameters shall apply
to the bail applications filed at a different
stages of trial. However, with each stage of
the trial, the threshold of the satisfaction of
the court may be raised in the facts and
circumstances of the case. Heightened
threshold of satisfaction means the duty of
the court to give full weight to prosecution
evidence, and due regard to the defence
case while considering grant of bail.

VII. It is not advisable to lay
down an inflexible or a straitjacket formula
for grant of bail which will fit all cases.
Practices and precedents in point are a
reliable
guide
for
the
Court
while
exercising its judicial discretion in bail
proceedings and a good defence against
arbitrary decisions.

4. Learned counsel for the applicant
has further relied upon Section 35 of the
Evidence Act and has submitted that
60 INDIAN LAW REPORTS ALLAHABAD SERIES
medical report as well as Parivar register
are public documents and the same are
important facts as per Evidence Act and the
benefit of doubt will go in favour of the
applicant so far as bail is concerned.

5. On the other hand, Shri Dilip Kumar
Pandey, learned counsel for the complainant
has submitted that as per school leaving
certificate, the age of the prosecutrix is below
16 years therefore, it is presumed that she is
minor. He has further submitted that though it
is a case of consent but if the girl is minor,
consent has no meaning, thus the bail is liable
to be rejected. It is further submitted that
Juvenile Justice Act, 1994 will prevail and it
should be inferred that the prosecutrix is
minor.

6. Shri Rajesh Kumar Singh, learned
AGA-1 has also opposed the prayer for bail
and has invited attention of this Court
towards the fact that as per school leaving
certificate, the age of the girl is 16 years
and she is minor and consent of minor has
no value, therefore, the bail of the applicant
is liable to be rejected.

7. Without expressing any opinion on
the merits of the case and after hearing
learned counsel for the parties and
considering the argument that as per
medical report as well as parivar register,
the age of the prosecutrix is found to be 18
years and the statement of the prosecutrix
under section 164 Cr.P.C. indicates that it is
a case of consent and the argument that the
applicant having no criminal history is
languishing in jail since 01.06.2022 and
looking to the the law points cited above, I
am of the opinion that the applicant is
entitled to be released on bail.

8. Let the applicant, Sandeep
Kumar, be released on bail in the above
case crime number on his furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of Court
concerned with the following conditions :-

(i) The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates 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.

(ii) 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 of the
Indian Penal Code.

(iii) In case, the applicant misuses
the liberty of bail during trial and in order
to secure his presence proclamation under
Section 82 Cr.P.C. is issued and the
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 of the Indian Penal Code.

(iv) The applicant shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) 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.

9. It is made clear that the
observations made in this order are limited
to the purpose of determination of this bail
application and will in no way be construed
8 All. Anil Kumar Tulsiani Vs. State of U.P.
61
as an expression on the merits of the case.
The Trial Court shall be absolutely free to
arrive at its independent conclusions on the
basis of evidence led unaffected by
anything in this order.
----------
(2023) 8 ILRA 61
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.08.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Bail Application No. 14783 of
2022

Anil Kumar Tulsiani ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Vaibhav Kalia, Abhinav Mishra, Vidhu
Bhushan Kalia

Counsel for the Opposite Party:
G.A., Pranjal Krishna

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 482 & 438 -
Indian Penal Code, 1860 - Sections 120B,
323, 504, 506, 406, 420, 467, 468 & 471-
Application for bail - FIR - offence of criminal
breach of trust, cheating, forgery and criminal
conspiracy - allegations of financial irregularities
and fraud related to a real eSt. project - and
accused-applicant and his brother failed to
deliver flats booked in a housing scheme,
mortgaging the property to a bank, and
defaulting on the loan, leading to the bank
taking possession of the flats - the applicant
claimed innocence, stating that the dispute was
civil in nature and that he had been falsely
implicated - The St. opposed the bail, citing the
applicant's criminal history involving multiple
similar cases - court finds that, the law provides
civil remedies for redressal of grievances alleged
in the FIR - impugned proceedings have been
initiated with an oblique motive to coerce the
accused persons to redress the civil grievances
of the veiled commercial corporate entity being
represented by the complainant - held, (i)
tendency of misusing the criminal proceedings
for claiming enforcement of civil rights by
indirect methods and evading payment of stamp
duty., registration fee and court fee cannot be
appreciated - and (ii) applicant is languishing
in jail for more than one year and without
making any observations, which may affect the
merits of the case, - hence, applicant is entitled
to be released on bail - accordingly, bail
application is allowed. (Para - 16, 17, 18)

Application Allowed. (E-11)

List of Cases cited:

1. Indian Oil Corpn. Vs NEPC India Ltd., (2006)
6 SCC 736

2. G. Sagar Suri Vs St. of U.P., (2000) 2 SCC 636

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Vaibhav Kalia Advocate,
the learned counsel for the applicant, Sri
Gyanendra Singh, the learned AGA for the
State and Sri Nandit Srivastava Senior
Advocate assisted by Sri Panjal Krishna
Advocate, the learned counsel for the
complainant.

2. The instant application has been
filed seeking release of the applicant on
bail in Case Crime No. 595 of 2021, under
Sections 409, 420, 504, 506, 467, 468, 471
& 120-B IPC, Police Station Vibhuti
Khand, District Lucknow.

3. The aforesaid case has been
registered on the basis of an F.I.R. lodged
on 08.11.2021 against the applicant and his
brother Mahesh Tulsiyani, alleging that the
complainant had booked three flats in the
name of his company in Golf View
Apartment Scheme in the year 2012. The
flats were not constructed within the