Allahabad High Court
Arif vs State Of U.P. on 15 March, 2021
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- BAIL No. - 9861 of 2020
Applicant :- Arif
Opposite Party :- State of U.P.
Counsel for Applicant :- Kaushal Kishor,Syed Wajahat Ali
Counsel for Opposite Party :- G.A.,Ajai Pratap Singh Chauhan
Hon'ble Vikas Kunvar Srivastav,J.
The case is called out.
Heard learned counsel for the bail-applicant, Sri Kaushal Kishore, Advocate, learned counsel for the complainant, Sri Ajai Pratap Singh Chauhan, Advocate, learned A.G.A. for the State, Ms. Nikita Mishra, Advocate and perused the record.
The present bail application is filed on behalf of accused-applicant- Arif, who is involved in Case Crime No.0126 of 2020, under Sections 363/366/376 I.P.C. and Section 3/4 of POCSO Act, registered at Police Station Kachhauna, District Hardoi.
The occasion of present bail application has arisen on rejection of bail plea of accused-applicant by learned Special Judge, POCSO Act, Hardoi vide order dated 22.10.2020. A copy of bail application has already been received in the office of learned G.A., pursuant thereto, learned A.G.A. for the State is present to protest the bail-application.
Counter affidavit and rejoinder affidavit have been exchanged between the parties.
Learned counsel for the bail applicant submitted the prosecution case as emerging out from the first information report is that on 24.02.2020 at about 04:00 P.M., the sister (victim) of the complainant went somewhere from her house and did not return back, complainant was telephonically informed about this incident by his another sister. On hearing this information, the complainant searched the victim and came to know that the present accused-applicant- Arif enticed the victim and took her away with the help of one Tajuddin.
Learned counsel further submitted that the said incident of 24.02.2020 was reported in the Police Station on 27.02.2020 without having any explanation to the delay. Learned counsel further submitted that initially the case was registered under Section 363/366 of I.P.C. and during investigation, Section 376 I.P.C. and Section 3/4 of POCSO Act have been added.
Learned counsel for the bail-applicant further drew attention towards the statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. of the victim, wherein she clearly stated that she is aged about 19 years and being in love affairs with the accused-applicant, she went with him on her own will and made physical relations.
Learned counsel further drew attention towards the medical examination report of the victim, wherein the age of victim is mentioned as 17 years, therefore, the same does not support the prosecution case.
In the above context, learned counsel for the bail-applicant submitted that the accused-applicant and the victim are residents of same village and being in love affairs with each other, they wanted to marry, therefore, the victim requested her family members to marry her with the accused applicant, but her family members disagreed with her, therefore, the victim willingly left her house alongwith the accused-applicant.
Learned counsel for the bail-applicant further submitted that the accused-applicant is falsely implicated in the case, is languishing in jail since 09.10.2020 for no fault on his part, he is a local resident, is ready and willing to face the trial and will abide himself to the conditions imposed on him for grant of bail and if enlarged on bail, will not misuse the liberty of bail.
Learned A.G.A., vehemently opposes the prayer for grant of bail but did not dispute the contentions made by learned counsel for the bail-applicant.
Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors. reported in (2018) 3 SCC 22, I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.
Let applicant (Arif), who is involved in Case Crime No.0126 of 2020, under Sections 363/366/376 I.P.C. and Section 3/4 of POCSO Act, registered at Police Station Kachhauna, District Hardoi be released on bail on his furnishing personal bond of Rs.1,00,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(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 him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuse 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.
Order Date :- 15.3.2021
Gaurav/-
