Saddam (Second Bail) vs State Of U.P. & Anr.
2021 Latest Caselaw 6835 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?RESERVED ON 29.6.2021
 
DELIVERED ON 30.6.2021
 
Court No. - 28
 
Case :- BAIL No. - 3742 of 2021
 

 
Applicant :- Saddam (Second Bail)
 
Opposite Party :- State Of U.P. & Anr.
 
Counsel for Applicant :- Atul Verma,Anil Kumar Pandey,Hari Krishna Verma
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Karunesh Singh Pawar,J.

1. This is second bail application filed under 439 CrPC in the light of judgment dated 11.2.2019 passed in Criminal Misc. Bail Application No.33075 of 2018, titled Rinku versus State of U.P., passed by this Court at Allahabad, the first having been rejected by this Court vide order dated 26.8.2019, passed in Criminal Appeal No.1446 of 2018.

2. Heard learned counsel for the applicant, learned Additional Government Advocate for the State and perused the record.

3. Learned counsel for the applicant submits that while rejecting the first bail application, the trial court was directed to conclude trial within a period of one year from the date of production of a copy of the order.

Applicant's counsel submits that the order dated 26.8.2019 (supra) was communicated in the month of September, 2019, however, till date, only a single prosecution witness has been examined as P.W.1 complainant. Thereafter, the trial is held up due to Covid-19 pandemic.

It is submitted that while considering the first bail application, it was argued before this Court by learned A.G.A. that the prosecutrix was a school going minor girl of Class-VIII and has been enticed and taken away from the lawful custody of her parents by the applicant in her school dress. This Court while giving due regard to this argument of learned A.G.A. has rejected the bail application.

It is contended on behalf of the applicant that the first information report in the instant case was lodged on 20.2.2018 with regard to an incident which took place on 19.2.2018. The informant is the mother of the prosecutrix, i.e. Smt. Sushila. As per the first information report lodged by the informant, her fourteen years old daughter, a student of Class-VIII had gone to school on 19.2.2018 at about 9.00a.m. but she did not return back. Hence, she lodged the first information report, Annexure-2 to the bail application.

The statement of the prosecutrix under section 161 CrPC shows her consent, her equal participation and her free will. The only rider was that the complainant stated that the prosecutrix was a minor girl of 14 years and thus, her consent and participation was disregarded. The prosecutrix in her statement recorded under section 164 CrPC has told a different story and she stated that she was 16 years old.

It is submitted that in fact the prosecutrix is a major girl of more than 18 years old. She, being major, is free to take her own decision. It was the modus operandi of the family to lodge the report regarding missing/kidnapping and subsequently derive benefits out of it.

It is further submitted that in the case of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 50% payment is released immediately after medical examination of the prosecutrix and after lodging of the report, 25% is provided after submission of charge-sheet and the rest 25% is given at the time of conclusion of the trial. Since the prosecutrix belongs to Scheduled Caste category, she is entitled to Rs.5 lacs in all as compensation and the prosecutrix in the instant case has already received 75% of the payment as compensation which is approximately Rs.3,75,000/-.

It is submitted that in August, 2018 one more first information report was lodged by the same complainant at police station Kakori under section 364 I.P.C. with regard to an alleged kidnapping of the same prosecutrix by an unknown person. Copy of the FIR is on record as Annexure-10. This second FIR has been lodged after less than six months, in which the complainant has shown the age of the prosecutrix as 18 years. The complainant again lodged a report under sections 354, 323, 504 I.P.C. and sections 7/8 Protection of Children from Sexual Offences Act, P.S. Kakori at crime No.273 of 2014 wherein she had stated that two persons molested her daughter.

Another application was given by the complainant during investigation of Case Crime No.273/2014 to police station Kakori that her daughter Uma had eloped with one Sunil on 15.7.2014. Copy of the second application dated 16.8.2014 is annexed as Annexure-12 to the bail application. The complainant herself is a widow. Her husband expired 16 years back and since then, she has been living without any livelihood and without any source of income.

The informant has been examined as P.W.1. During the cross examination, the witness stated that her husband had died about sixteen years back and her daughter was about four years old at the time of the death of her father which further shows that the prosecutrix is a major girl. Medical age of the prosecutrix could not be determined and the prosecutrix has deliberately withheld the factum of medical age as it would have jeopardized the allegation of the complainant regarding her age.

The police of police station Kakori has got to know about the modus operandi of the complainant regarding repeated lodging of the first information reports by showing the daughters being kidnapped or enticed away by accused persons and accordingly the police of police station Kakori has submitted a final report in the case which was registered as Crime No.550 of 2018 under section 364 I.P.C. on 3.8.2018.

It is submitted on behalf of the applicant that from the statement of the prosecutrix as P.W.1 as well as perusal of the second first information report No.550 of 2018 under section 364 I.P.C., it is clear that the prosecutrix is a major girl. No ossification test of the prosecutrix has been conducted. There is no scientific or forensic evidence or any other corroborative evidence to connect the applicant with the instant crime as medical evidence does not corroborate the oral evidence.

The applicant is a young boy and is in jail since 16.4.2018. The applicant has no previous criminal history.

It is further submitted that there is no possibility of the applicant of fleeing away after being released on bail or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.

4. Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.

5. Considering the facts and circumstances of the case, including the fact that the applicant has no criminal history, arguments advanced by learned counsel for the parties, trial of the case is held up due to Covid-19 pandemic, for the period for which he is in jail and without expressing any opinion on the merits of the case, I find it to be a fit case for enlarging the applicant on bail.

6. Let the applicant Saddam, involved in Case Crime No.129 of 2018 under sections 363, 376 I.P.C. and sections 3/4 Protection of Children from Sexual Offences Act and Section 3(2)(v) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, Police Station Kakori, district Lucknow be released on bail 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 will not tamper with the evidence during the trial.

(ii) The applicant will not pressurize/ intimidate the prosecution witness.

(iii) The applicant shall not directly or indirectly make any 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 to any police officer or tamper with the evidence.

(iv) 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.

(v) 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.

(vi) 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.

(Karunesh Singh Pawar, J)

30.6.2021

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