Allahabad High Court
Sandeep Kumar vs State Of U.P. on 13 August, 2021
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 16
Case :- BAIL No. - 3597 of 2021
Applicant :- Sandeep Kumar
Opposite Party :- State of U.P.
Counsel for Applicant :- Sarjoo Ram,Aklavya,Satyavrat Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
Rejoinder affidavit filed today, is taken on record.
The notice on opposite party No.2 was issued vide order dated 23.03.2021. It transpire from Office report dated 28.05.2021 that notice on opposite party No.2 has been served. After service of notice, the case was listed on 24.06.2021 as also 28.07.2021, however, from the order passed on the said dates, it appears that no one was present on behalf of opposite party No.2 when the case was called out and taken up and even today, when the case was called out no one present on behalf of opposite party No.2, however, learned A.G.A. is present.
Heard the learned counsel for the applicant and the learned AGA for the State and perused the record.
The present bail application has been filed on behalf of the applicant in Case Crime No.313 of 2020, under Sections 34, 363, 376-D I.P.C, 5(g) 6 POCSO Act, Police Station-Patti, District-Pratapgarh, with the prayer to enlarge him on bail.
Learned counsel for applicant while pressing the bail application submitted that applicant is innocent and has been falsely implicated in the case.
It is submitted that as per prosecution case, initially the F.I.R. was lodged on 31.10.2020, under Section 363 I.P.C. alleging therein the applicant enticed away the victim with him at about 05:30 PM. The victim was recovered on the same day i.e. 30.12.2020, as appears from the statement of victim recorded under Section 161 Cr.P.C. In her statement only allegation against the applicant is to the effect that he enticed the victim and she has not made any allegation regarding commission of rape. As per her statement, she was dropped by the applicant at about 06:00 PM at 'Madafar Bazar'. This statement was recorded on 01.11.2020. In the statement recorded on 06.11.2020 under Section 164 Cr.P.C. the victim changed the entire prosecution story by making allegation of commission of rape.
He submitted that victim is not truthful witness of the prosecution and moreover the story of the prosecution is improbable as the time, as per prosecution itself, is only about 30 minutes, in which the applicant and victim remained together, though it is not true, as appears from conjoint reading of the contents of the F.I.R. and the statement made by the victim under Section 161 Cr.P.C. He submitted that the applicant is major and as per radio logical age the applicant is approximately above 18 years. He further submitted that at this stage of bail the radio logical age is liable to be considered as the age mentioned in the school leaving certificate is subject to evidence to be adduced by the parties in trial. In this regard, he relied upon the judgment of Division Bench of this Court passed on 03.08.2018 in Habeas Corpus No.21284 of 2018 (Deepa vs. State of U.P. & Ors.). It is also stated that the victim on her own volition went with the victim.
Learned counsel for applicant, on the basis of report of medical expert, submitted that the same also does not support the story of the prosecution as the victim before the Medical Officer has not levelled any allegation of rape against the applicant as at that point of time it appears that no pressure was exerted by the family members of the victim rather, as appears therefrom that she stated one boy came, she went with him on motorcycle. As per medical report, neither any external injury was found nor spermatozoa was found. Prayer is to allow the application for bail and release the applicant on bail.
It is also submitted that there is no apprehension that after being released on bail, they may flee from the course of law or may otherwise misuse the liberty of bail and the applicants are in jail since 06.11.2020.
Learned A.G.A. has opposed the prayer for grant of bail to the applicant but he does not dispute the contention of learned counsel for applicant.
Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and keeping in mind medical opinion as also the allegations levelled against the applicant by the victim in the statements aforesaid, without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
Let applicant-Sandeep Kumar be released on bail in aforesaid Case Crime Number on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to 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 his 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.
In case of breach of any of the above conditions, the Court below shall be at liberty to cancel the bail and proceed against the applicant in accordance with law.
This order shall not influence the trial Court for proceeding with the trial.
The application stands disposed of.
The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by him alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 13.8.2021
Vinay/-
