Allahabad High Court
Shambhu vs State Of U.P. Thru Prin.Secy. Home ... on 18 August, 2022
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 11
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4309 of 2022
Applicant :- Shambhu
Opposite Party :- State Of U.P. Thru Prin.Secy. Home Lucknow And Ors.
Counsel for Applicant :- Smriti
Counsel for Opposite Party :- G.A.,Ajay Kumar Tripathi
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the applicant, learned A.G.A for the State as well as Sri Ajay Kumar Tripathi, learned counsel for the opposite party no.2 and perused the record.
Vide order dated 01.08.2022, time was granted to learned counsel for the complainant as well as learned A.G.A. to file counter affidavit, however no counter affidavit till date has been filed by learned counsel for the complainant. Learned A.G.A. has filed counter affidavit to which the rejoinder affidavit has also been filed. In these circumstances, the Court proceed to hear the bail application on merits.
The present bail application has been filed on behalf of the applicant in Case Crime No. 452 of 2021, under Sections 363,366,376 IPC and Section 3/4 POCSO Act, Police Station Pihani, District Hardoi,with a prayer to enlarge him on bail.
While pressing the application for bail, learned counsel for the applicant submitted that the occurrence is of 04.08.2021 while the F.I.R. was lodged on 10.08.2021 and, thus, there is delay in lodging the F.I.R.
It is further stated that as per the F.I.R. the applicant enticed away the daughter of the informant, who at the relevant time was 17 years old. It is further stated that the prosecution after recovery recorded the statement of the victim under Section 161 Cr.P.C. and as per the said statement the victim was 18 years old at the relevant time and this statement further shows that the victim was in contact with the applicant and she on her own volition left her parental house and lived with the applicant for 2-3 months. It is further stated that the statement of the victim was recorded under Section 164 Cr.P.C. Before the Court concerned also, the victim has not levelled any allegation against the applicant. On the other hand, the victim has stated that she on her own volition went to Delhi with the applicant and there she solemnized marriage on 10.08.2022 and lived with the applicant at Delhi. However, as per this statement of the victim, she at the relevant time was 17 years old. The age of the victim is in dispute as according to the medical opinion, the victim at the relevant time was 19 years old.
From the facts, it is apparent that there is dispute regarding age of victim and at this stage of bail, the benefit of pronouncements of Apex Court as well as of this Court in regard to determination of age shall be extended in favour of the applicant. In this regard, reliance has been placed on the judgment dated 03.08.2018 passed in HABEAS CORPUS No. 21284 of 2018 (Deepa through her next friend Mithun v. State of U.P. and others).
He further stated that the applicant is languishing in jail since 08.10.2021 and trial is not proceeding as per the provisions of Section 35 of the POCSO Act,2012 and possibility of conclusion of trial in near future is extremely bleak. The Doctor concerned has not found any injury while examining the victim,
Learned A.G.A. opposed the prayer for grant of bail, however, he could not dispute the above contention made by the learned counsel for the accused-applicant.
Considering the above facts and circumstances of the case, coupled with the contentions raised by the learned counsel for both sides including the age of the victim and facts related to performing the marriage with the victim, period of incarceration, spirit of Section 35 of POCSO Act and without entering into the merit of the case, I am of the view that the applicant is entitled to be released on bail.
Application is allowed.
Let the applicant Shambu be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the 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 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 fail 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.
(v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
Order Date :- 18.8.2022
Arjun/-
