Allahabad High Court
Abhishek Sahu (Minor) vs State Of U.P. And Another on 5 August, 2021
Bench: Anil Kumar Ojha
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 77
Case :- CRIMINAL APPEAL No. - 311 of 2021
Appellant :- Abhishek Sahu (Minor)
Respondent :- State of U.P. and Another
Counsel for Appellant :- Rajesh Kumar Dubey
Counsel for Respondent :- G.A.
Hon'ble Anil Kumar Ojha,J.
Heard Sri Rajesh Kumar Dubey, learned counsel for the appellant, learned A.G.A. for the State and perused the record.
Despite service of notice, none present on behalf of respondent no. 2 Matranjan Kumar.
Appellant has preferred this appeal against the judgment and order dated 24.11.2020 passed by Additional Sessions Judge/Special Judge, P.O.S.C.O. Act, Allahabad(Prayagraj) in Criminal Misc. Bail Application No. 64 of 2020 (C.N.R. No. -UPAD-01-009277-2020) Abhishek Sahu v. State of U.P., under Sections 363-A (4) (B), 376D, 506 of I.P.C. and Section 5 & 5-Tha, 6 of P.O.C.S.O. Act, Police Station Bara, District Prayagraj, connected Case Crime No. 213 of 2019 whereby the Special Judge, P.O.C.S.O. Act has rejected the bail application of the appellant.
As per FIR, the prosecution version is that on 09.09.2019, the daughter of the respondent no. 2 Matranjan Kumar, aged about 13 years was enticed away at about 09:30PM by the appellant and co-accused Anil Sonkar and the FIR was lodged at P.S. Bara, District Allahabad on 10.09.2019, under sections 363 of I.P.C.
Submission of the learned counsel for the appellant is that appellant has been falsely implicated due to enmity. The appellant has not committed the alleged offence. There is no evidence of the alleged incident. The order passed by Special Judge, P.O.S.C.O. Act is against the evidence available on record. The Additional Sessions Judge/Special Judge, P.O.C.S.O. Act, Allahabad completely failed to appreciate the report submitted by District Probation Officer. From the statement recorded under Section 161 Cr.P.C. of the victim, no offence is made out against the appellant. It is further submitted that delay in lodging the F.I.R. has not been explained. The appellant has no criminal antecedents. He is absolutely innocent as in the social investigation report submitted by District Probation Officer, nothing adverse has been found to the effect that if he is released on bail, he would come in association with hardened criminals. Learned counsel for the appellant drew the attention of this Court towards the order dated 03.12.2020 passed in Criminal Misc. Bail Application No. 28497 of 2020 (Anil Kumar Sonkar @ Chhotu) wherein co-accused Anil Kumar Sonkar @ Chhotu has been granted bail in the matter. The appellant is in jail since 07.10.2019.
Per contra, learned A.G.A. vehemently opposed the prayer of the appellant.
Perusal of the record reveals that District Probation Officer has opined that the if the appellant will be released on bail then there are chances for improvement of the appellant and education is necessary to be continued and nothing adverse has been mentioned against the appellant.
I have gone through the statement of victim under Section 161 Cr.P.C. in which she has not levelled any allegation with regard to rape against the appellant and in her statement under Section 164 Cr.P.C. she stated that appellant also committed wrong act with her, which shows contradiction between her statement under Section 164 Cr.P.C. and 161 Cr.P.C. The appellant is below 18 years of age as per the age determination order dated 10.02.2020 passed by Special Judge, P.O.C.S.O Act, Allahabad. A perusal of the impugned order indicates that the bail application of the appellant has been rejected only on the ground of offence being very serious/heinous and the court below has not taken into consideration the mandatory provision of grant of bail as provided under section 12 of the Juvenile Justice (Care and Protection of Children) (Amended) Act 2015 wherein it is laid-down that the bail could be refused to the accused-juvenile only when he is likely to come into association with any known criminal or would be exposed to moral, physical or psychological danger or that his release would defeat the ends of justice. No such evidence appears to be there on record, collected by the prosecution side including that of social investigation report which would indicate evidence to above effect.
In view of the above, considering the rival submissions of learned counsel for the parties, keeping in view the facts and circumstances of the case, particularly the fact that the co-accused Anil Kumar Sonkar has been granted bail and there is contradiction between the statement of the victim under Section 161 & 164 Cr.P.C., I am of the opinion that the order rejecting the bail of the appellant by the Special Judge, P.O.S.C.O. Act, Allahabad (Prayagraj) is not legally sustainable, hence, this is found to be a fit case for grant of bail. The appeal deserves to be allowed and is accordingly allowed.
The order dated 24.11.2020 passed by Additional Sessions Judge/Special Judge, P.O.S.C.O. Act, Allahabad(Prayagraj) in Criminal Misc. Bail Application No. 64 of 2020 (C.N.R. No. -UPAD-01-009277-2020) Abhishek Sahu v. State of U.P., under Sections 363-A (4) (B), 376D, 506 of I.P.C. and Section 5 & 5-Tha, 6 of P.O.C.S.O. Act, Police Station Bara, District Prayagraj, arising out of Case Crime No. 213 of 2019 is set aside.
Let the Juvenile appellant- Abhishek Sahu (Minor) be released on bail on his mother Smt. Bina Devi furnishing a personal bond of Rs. 50,000 and two sureties of the like amount to the satisfaction of the court concerned on furnishing an undertaking that he shall not allow the appellant to come in association with any hardened criminal and shall take care of his education and well being and that on each and every date of trial, he shall also appear before the court concerned. In case, he makes any default, the prosecution shall be at liberty to move for cancellation of his bail.
Order Date :- 5.8.2021
VPS
