HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 52 Case :- CRIMINAL APPEAL No. - 3552 of 2017 Appellant :- Sachin Respondent :- State Of U.P. & 2 Others Counsel for Appellant :- Mohit Singh,Dileep Kumar Shukla Counsel for Respondent :- G.A. Hon'ble Rajul Bhargava,J.
Order-sheet of this case reveals that notices were issued to opposite party nos. 2 and 3 by an order of this Court dated 27.7.2017. In compliance of order of this Court, report of Chief Judicial Magistrate, Moradabad was received, according to which, opposite party nos. 2 and 3 were not found at their given address and search was being made. The case was adjourned several times and in the counter affidavit filed by the State, it is shown that notice has been effected on one Girvar son of Ram Singh while the first informant of the case is Smt. Sunita and Girvar is neither first informant nor prosecutrix. Thereafter on 16.11.2017, the Chief Judicial Magistrate was directed to ensure service of notices upon opposite party nos. 2 and 3 within seven days. Again reminder was sent by an order dated 1.12.2017 of this Court. In this behalf, learned Chief Judicial Magistrate, Moradabad submitted a report that first informant and the prosecutrix have relocated themselves in Chandigarh and are working as labourer and their whereabouts are not traceable. Similar such report has been submitted by the police concerned which has been submitted by learned A.G.A. in his counter affidavit, copy whereof is filed as annexure-1.
In view of it, the service of notices upon opposite party nos. 2 and 3 is dispensed with.
Heard Sri Mohit Singh, learned counsel for the appellant, learned AGA for the State and perused the record.
This appeal has been filed against judgement and order dated 9.6.2017 of learned Special Judge (POCSO Act)/ Additional District and Sessions Judge, Court No.10, Moradabad passed in Bail Application No. 1691 of 2017 in S.T. No. 383 of 2017 (Sachin vs. State of U.P.) arising out of Case Crime No. 583 of 2016, under Sections 363, 366, 376 I.P.C., 3/4 of Protection of Children From Sexual Offences Act, 2012 and Section 3(1)12 of SC/ST Act, P.S.Hayatnagar, District Sambhal, by which bail plea of appellant has been rejected.
Learned counsel for the appellant submitted that order of the learned court below rejecting bail application of applicant-appellant is bad in law. It is further submitted that according to the prosecution, the age of the prosecutrix was 16 years whereas as per the medical report she was at the verge of attaining majority on the date of the incident. He has further argued that in fact the appellant and prosecutrix were having love affair and they had solemnized marriage. In this behalf, certain photographs have been annexed along with the affidavit. He has next submitted that from the statement of the prosecutrix recorded under Section 164 Cr.P.C., it appears that she was a consenting party and the allegations of rape and kidnapping are totally false. The appellant is languishing in jail since 9.3.2017, having no criminal history to his credit except a case registered under Section 174- I.P.C. which, too, was lodged after the lodging of instant case. Thus the appellant may be enlarged on bail.
Learned AGA has opposed the aforesaid submissions of learned counsel for the appellant.
Having heard the submission of learned counsel of both sides, considering the facts and circumstances of the case, age of the appellant and nature of accusation against appellant and evidence in support of it and unlikelihood of conclusion of trial in near future, I find that a case for bail has been made out.
In the result, appeal is allowed. The judgement and order dated 9.6.2017 of learned Special Judge (POCSO Act)/ Additional District and Sessions Judge, Court No.10, Moradabad is set aside.
Let appellant-applicant-Sachin,be released on bail in aforesaid case on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant-appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-appellant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
Order Date :- 23.4.2018 MN/-