Allahabad High Court
Indrajeet Chaudhary Alias Majhil ... vs State Of U.P. And 3 Others on 29 May, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:93125 Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13888 of 2025 Applicant :- Indrajeet Chaudhary Alias Majhil Chaudhary Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Madhu Kumar Ram,P.K. Upadhyay,Praveen Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr P.K. Upadhyay, the learned counsel for applicant/appellant and the learned AGA for State opposite party no. 1.
2. Perused the record.
3. On the matter being taken up the learned AGA submits that notice of this repeat application for bail has been served upon first informant/opposite party no. 4 on 22.04.2025. However, in spite of service of notice upon first informant/opposite party no. 4 neither any counter affidavit has been filed in opposition to this repeat application for bail, nor anyone has put in appearance on his behalf to oppose this repeat application for bail even in revised call.
4. This repeat application for bail has been filed by applicant-Indrajeet Chaudhary Alias Majhil Chaudhary, seeking his enlargement in Case Crime No. 122 of 2023 under Sections 376DA I.P.C., Section 5G/6 POCSO Act and Section 67 I.T. Act, Police Station- Narahi, District- Ballia during the pendency of trial i.e. Sessions Trial No. 763 of 2023 (State Vs. Garjan Yadav and Another) now under Section 376 DA I.P.C., 67 I.T. Act and 5G/6 and 13/4 of POCSO Act, Police Station- Narahi, District- Ballia, now pending in the Court of Additional Sessions Judge Court No. 1/Special Judge POCSO Act, Ballia.
5. The first bail application of applicant was rejected by this court by a detailed order dated 31.10.2023 passed in Criminal Misc. Bail Application No. 37446 of 2023 ( Indarjeet Chaudhary @ Majhil Chaudhary Vs. State of U.P. and 3 Others). For ready reference the same is reproduced hereinunder:-
"1. Heard Mr. Virendra Pratap Pal, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant-Indrajeet Chaudhary @ Majhil Chaudhary seeking his enlargement on bail in Case Crime No. 122 of 2023, under Sections 376 DA IPC, Sections 5G/6 POCSO Act and Section 67 I.T. Act, Police Station-Narahi, District-Ballia during the pendency of trial.
4. Present application came up for orders on 03.10.2023 and this Court passed the following order-
"1. Heard Mr. Virendra Pratap Pal, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant-Indrajeet Chaudhary @ Majhil Chaudhary seeking his enlargement on bail in Case Crime No. 122 of 2023, under Section 376 D.A. IPC, and Sections 5G/6 POCSO Act and Section 67 I.T. Act, Police Station-Narahi, District-Ballia during the pendendy of trial.
4. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant-opposite party 4 on 16.08.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party 4 to oppose this application for bail.
5. After some arguments, it appears that the applicant has been charge sheeted under the provisions of the POCSO Act, on the basis of date of birth of the prosecutrix mentioned in the certificate issued by the Principal of the institution where the prosecutrix is a student of Class-5.
6. Admittedly, by virtue of the provisions contained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, the said document could not be relied upon for determining the age of the prosecutrix as per the date of birth mentioned therein.
7. Learned A.G.A. informs the Court that the charge sheet has already been submitted against the applicant on 02.06.2023.
8. In view of above, the Investigating Officer is directed to submit an application under Section 173(8) Cr.P.C. before court below seeking permission of the Court to conduct further investigation. Thereafter, the Investigating Officer shall endevour to discover the date of birth of the prosecutrix recorded in the record of the institution first attended by the prosecutrix. The necessary exercise shall be undertaken by the Investigating Officer within a period of three weeks from today. The copy of supplementary case diary shall be transmitted to this Court through the learned A.G.A. before the next date fixed.
9. In view of above, matter shall, accordingly, re-appear as fresh on 31.10.2023"
5. In compliance of above order dated 03.10.2023, the learned A.G.A. has filed an affidavit of compliance in Court today, is taken on record.
6. Record shows that in respect of an incident, which is alleged to have occurred on 14.03.2023, a delayed FIR dated 16.05.2023 was lodged by first informant-Noor Alam (father of the prosecutrix) and was registered as Case Crime No. 122 of 2023, under Sections 376 DA IPC, Sections 3/4 POCSO Act and Section 67 I.T. Act, Police Station-Narahi, District-Ballia. In the aforesaid FIR, 2 persons namely Majhil Chaudhary and Munna Yadav have been nominated as named accused.
7. The gravamen of the allegations made in the FIR is to the effect that named accused dislodged the modesty of the daughter of the first informant i.e. prosecutrix namely X aged about 15 years.
8. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The statement of the prosecutrix was recorded under Section 161 Cr.P.C. wherein the prosecutrix has supported the FIR. The same in on record at page 32 of the paper book. Thereafter, the prosecutrix was requested for her internal medical examination. However, the prosecutrix has refused for her internal medical examination. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., which is on record at page 51 of the paper book. The prosecutrix in her aforesaid statement has rejoined her previous statement under Section 161 Cr.P.C.
9. During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have supported the FIR. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of named accused Indrajeet Chaudhary @ Majhil Chaudhary and Garjan Yadav @ Munna Yadav is established in the crime in question. He, accordingly, submitted the charge sheet dated 02.06.2023 whereby aforementioned named accused have been charge sheeted under Sections 376 DA IPC, Sections 5G/6 POCSO Act and Section 67 I.T. Act.
10. Learned counsel for applicant submits that though the applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail.
11. Co-accused Garjan Yadav @ Munna Yadav has already been enlarged on bail vide order dated 17.07.2023 passed in Criminal Misc. Bail Application No. 31017 of 2023 (Garjan Yadav @ Munna Yadav Vs. State of U.P.). For ready reference, the order dated 17.07.2023 is reproduced hereinunder:-
"1. Sri Jhamman Ram, learned AGA for the State apprised the Court that on 03.07.2023 notice has been served to the informant of the case. Despite service of notice, none appeared on behalf of the informant.
2. Heard Sri Shashank Kumar, learned counsel for the applicant and Sri Jhamman Ram, learned AGA for the State-respondent.
3. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 122 of 2023, under Sections 376-DA IPC & 5G/6, 13/14 POCSO Act & 67A I.T. Act, Police Station- Narhi, District- Ballia, during pendency of the trial in the court below.
4. FIR of the present case was lodged against the applicant and co-accused Majhil Chaudhary and according to the FIR, applicant and co-accused Majhil Chaudhary committed rape with the minor daughter of the informant aged about 15 years on 14.03.2023 and they also prepared indecent videographs of the victim and posted the same on social media.
5. Learned counsel for the applicant submitted that entire allegation made against the applicant is totally false and baseless and on the date of incident i.e. on 14.03.2023, applicant was in Jail in connection to a case of Cow Slaughter Act and this fact is evident from the bail granting order of the applicant passed by the court concerned dated 17.03.2023, which has been annexed as Annexure No. 2 to the affidavit, which shows that applicant was in jail since 26.02.2023 i.e. even before the alleged incident of rape. He further submitted that this fact has also specifically been averred in paragraph no. 11 of the affidavit.
6. He further submitted that although there is allegation that some indecent videographs of the victim were also prepared and posted on social media but no such videographs could be recovered by the Investigating Officer during investigation. He further submitted that except the present matter and above noted case of Cow Slaughter Act, there is no other case pending against the applicant and applicant is in jail in the present matter since 16.05.2023.
7. Per contra, learned AGA although, opposed the prayer for bail but could not dispute the fact that from the bail granting order of the applicant passed by the court concerned, which has been annexed as Annexure No. 2 to the affidavit passed in Case Crime No. 35 of 2023, under Sections- 3/5A/8/5B of Cow Slaughter Act and 3/25 Arms Act, Police Station- Bhanvarkol, District- Ghazipur, it appears that applicant was in jail since 26.02.2023 and was released on bail vide order dated 17.03.2023.
8. I have heard learned counsel for the parties and perused the record of the case.
9. Although, victim of the case appears to be minor aged about 15 years and she in her both the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. made allegation of rape against the applicant and co-accused Majhil Chaudhary but from the perusal of the bail granting order of the applicant passed in another case of Cow Slaughter Act, which has been annexed as Annexure No. 2 to the affidavit, it appears that applicant was in jail in connection to case of Cow Slaughter Act since 26.02.2023 and was released on bail vide order dated 17.03.2023, therefore, it appears that on the date of incident i.e. on 14.03.2023, applicant was in jail, therefore, in my view, applicant is entitled to be released on bail.
10. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.
11. Let the applicant- Garjan Yadav @ Munna Yadav be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.
(ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence.
(iii) The applicant shall not indulge in any criminal and anti-social activity.
12. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.
13. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial."
12. It is next contended that the role assigned to both the named/charge sheeted accused is common. There is no such distinguishing feature on the basis of which, the case of present applicant could be so distinguished from named/charge sheeted co-accused-Garjan Yadav @ Munna Yadav so as to deny him bail. He, therefore, submits that in view of above and for the facts and reasons recorded in the bail order of co-accused-Garjan Yadav @ Munna Yadav, applicant is also liable to be enlarged on bail.
13. According to the learned counsel for applicant, the prosecutrix is a willing and consenting party. Since the prosecutrix has herself refused to give her consent for internal medical examination, that there is no medical evidence to support the ocular version of the occurrence.
14. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 16.05.2023. As such, he has undergone more than 5 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
15. Per contra, the learned A.G.A. has opposed the present application for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. No parity can be claimed by the applicant with the bail order of co-accused Garjan Yadav @ Munna Yadav inasmuch as, co-accused Garjan Yadav @ Munna Yadav was enlarged on bail on the ground that co-accused Garjan Yadav @ Munna Yadav was under incarceration on the date of occurrence. It is then contended by the learned A.G.A. that date of birth of the prosecutrix recorded in the institution first attended by her is 10.04.2012. The occurrence giving rise to the present criminal proceedings is alleged to have occurred on 14.03.2023. As such, the prosecutrix was aged about 10 years, 11 months and 4 days on the date of occurrene. At this juncture, the learned A.G.A. invited the attention of Court to the judgment of Supreme Court in X (Minor) Vs. The State of Jharkhand and Another 2022 LiveLaw (SC) 194, and on basis thereof, he contends that, since the prosecutrix is below 16 years of age then in such a circumstance, the consent, if any, of the prosecutrix shall be wholly immaterial. The prosecutrix in her statements recorded under Sections 161/164 Cr.P.C. has remained clear, categorical and consistent, wherein she has not only supported the FIR but also detailed the manner of occurrence. Referring to the judgment of the Supreme Court in Phool Singh Vs. State of M.P., (2022) 2 SCC 74, the learned A.G.A. contends that the prosecution of an accused in a case of rape or sexual assault can be maintained even in the absence of medical evidence and on the solitary statement of the prosecutrix. However, in such a circumstance, the statement of the prosecutrix must be of impeccable character. Up to this stage, there is no such material on record on the basis of which, the very credibility or the reliability of the prosecutrix can be doubted. No material has emerged on the record to infer false or malicious prosecution of the applicant either. On the above conspectus, the learned A.G.A. contends that no sympathy be shown by this Court in favour of applicant.
15. When confronted with above, the learned counsel for applicant could not overcome the same.
11. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, complicity of accused, accusations made coupled with the fact that the submissions urged by the learned A.G.A. in opposition to the present application for bail could not be dislodged by the learned counsel for applicant with reference to the record, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of the present application for bail, but without making any comments on the merits of the case, this Court does not find any good or sufficient ground to enlarge the applicant on bail.
12. As a result, present application for bail fails and is liable to be rejected.
13. It is accordingly rejected. "
6. Learned counsel for the applicant/appellant submits that though applicant is a named as well as chargesheeted accused and also facing trial before the court below, however, in view of the subsequent developments that have taken place applicant/appellant is liable to be enlarged on bail during the pendency of trial.
7. In furtherance of aforesaid submissions, it is submitted by the learned counsel for applicant that subsequent to the order dated 23.10.2023, passed by this Court prosecutrix deposed before the court below as PW-1. Her deposition has been brought on record as Annexure SA-1 to the supplementary affidavit dated 14.05.2025.
8. With reference to above, the learned counsel for the applicant submits that the prosecutrix in her deposition before court below has not given any clear, categorical and consistent statement. To the contrary the prosecutrix has been ambiguous and contradictory. He therefore contends that the deposition of the prosecutrix before court below suffers from the vice of embellishment and contradiction. It is thus urged by the learned counsel for applicant that since the prosecutorix herself has not remained clear, categorical and consistent before court below, therefore, no cast iron case is made out for perpetuating the custodial arrest of applicant. On the above premise he, therefore, submits that applicant is liable to be enlarged on bail during pendency of trial.
9. It is then submitted by the learned counsel for the applicant that the charge sheet/police report in terms of section 173(2) Cr.P.C. has already been submitted by the Investigating Officer against the applicant. As such, the entire evidence relied upon by the prosecution against the applicant stands crystallized. However, up to this stage no such incriminating circumstance has emerged on record so as to prolong the custodial arrest of applicant during the pendency of trial.
10. Furthermore, since the statement of the prosecutrix has already been recorded before court below as she has deposed as PW-1, therefore, in view of above, in case applicant is enlarged on bail then in that eventuality it cannot be said that if the applicant is enlarged on bail then he shall either hamper the course of trial or shall terrorize the witnesses.
11. It is thus contended by the learned counsel for applicant that no good ground now exist so as to prolong the custodial arrest of applicant.
12. Even otherwise applicant is a man of clean antecedents as he has no criminal history to his credit except present one. Applicant is in jail since 16.05.2023. As such, he has undergone more than 2 years of incarceration. The custodial arrest of applicant is not absolutely necessary for conducting the trial of applicant.
13. Per contra the learned AGA representing State opposite party-1 has vehemently opposed the prayer for bail. He submits that since applicant is a named and chargesheeted accused, therefore, he does not deserve any indulgence by this Court. Learned AGA has then invited the attention of this Court to the order passed by a Co-ordinate Bench of this Court on bail application of co-accused Garjan Yadav. With reference to the above order the learned AGA submits that this Court has already heard that the main allegations have been made against the present applicant.
14. It is further submitted by the learned AGA that even if part of the prosecution story is held to be false but that by itself does not wipe out the occurrence giving rise to the present criminal proceedings itself. Furthermore in case the deposition of the prosecturix before the court below suffers from the vice of contradiction or exaggeration even then the applicant is not liable to be enlarged on bail. According to the learned AGA even though this Court is a superior Court yet dictates of prudence require that this Court should not evaluate and appreciate the evidence which has emerged during the course of trial as any observation made by this Court shall pre-empt the trial and may affect the prosecution or the defence, as the case may be. In the submission of the learned AGA even though the prosecturix has not been clear, categorical and consistent in her deposition before court below yet she has not been declared hostile. Learned AGA therefore submits that any observation made by this Court qua the nature of deposition of the prosecutrix shall pre-ampt the trial. Considering the nature and gravity of offence the period of incarceration undergone by applicant is by itself not so sufficient a ground so as to enlarge the applicant on bail. Learned AGA thus submits that irrespective of above no new, good or sufficient ground has emerged so as to enlarge the applicant on bail.
15. In rejoinder the learned counsel for the applicant submits that in view of the material as has now emerged on record it is clear that the complicity of co-accused Garjan Yadav, in the crime in question has been found to be false in as much as on the date and time of alleged incident, he was under incarceration. This fact has already been noted by this Court while granting bail to co-accused Garjan Yadav. It is further submitted that it is also evident from the record that prosecutrix in her deposition before court below has not remained clear, categorical and consistent, as such, there is no such impeccable evidence on record on the basis of which prima facie the prosecution story could be relied upon. It is thus contended that at this stage the applicant is entitled to be given the benefit of doubt as the benefit of doubt is always given to the accused. It is lastly submitted that since the prosecutrix in her deposition before court below has not remained clear, consistent and categorical qua the criminality alleged to have been committed by the applicant upon her, no good ground now exists to prolong the custodial arrest of applicant. Moreover the chargesheet/police report in terms of Section 173(2) Cr.P.C. has already been submitted therefore the entire evidence sought to be relied upon by the prosecution stands crystallized. However, no such incriminating circumstance has emerged on record so as to maintain the custodial arrest of applicant. He therefore submits that in view of above and also the judgement of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the applicant is liable to be enlarged on bail. Since the statement of the prosecutrix has been recorded before court below, therefore, in case the applicant is enlarged on bail then in that eventuality it cannot be said that if the applicant is enlarged on bail then he shall either terrorize the witnesses or shall hamper the course of trial. As such, no good ground is in existence to prolong the custodial arrest of applicant.
16. Having heard the learned counsel for applicant, the learned AGA for State opposite party-1 and upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused, this Court finds that applicant is a convicted and chargesheeted accused, the first bail application of applicant has already been rejected by this court vide order dated 31.10.2023,whereas co-accused Garjan Yadav has already been granted bail by this Court, this Court while granting bail to co-accused Garjan Yadav has already observed that complicity of the co-accused in the crime in question is prima facie false, in view of above part of the prosecution story as unfolded in the FIR is prima facie false, subsequent to the order dated 31.10.2023 the prosecutrix has deposed before the court below as PW-1, the prosecutrix in her deposition before court below has not remained clear, categorical and consistent, in view of above, the deposition of the prosecutrix before the court below suffers from the vice of embellishment and contradiction, as such, at this stage it cannot be prima facie said that applicant is guilty of committing the offence complained of, since the prosecturix in her deposition before the court below has not clearly and categorically implicated the applicant in the crime in question. As such, applicant is liable to be enlarged on bail, moreover once the statement of the prosecutrix has been recorded before court below, therefore, in case the applicant is enlarged on bail then in that eventuality it cannot be said that applicant shall either terrorize the witnesses or shall hamper the course of the trial, as such, no good ground exist to perpetuate the custodial arrest of applicant, the chargesheet/police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above the learned AGA could not point out any such incriminating circumstance from the record necessitating the custodial arrest of applicant during the course of trial, the judgement of supreme court in Sumit Subhashchandra Gangwal (Supra) the recovery of the obscene material is from the mobile phone of the co-accused Garjan Yadav as obtained from the CD parcha 58, therefore, irrespective of the objections raised by the learned AGA in opposition to this repeat application for bail but without making any comments on the merits of the case, applicant is made out a case for bail.
17. Accordingly, this repeat application for bail is allowed.
18. Let the applicant-Indrajeet Chaudhary @ Majhil Chaudhary, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
19. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 29.5.2025 Saurabh