Allahabad High Court
Rehan vs State Of U.P. Through Its ... on 11 August, 2022
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 11
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 827 of 2022
Applicant :- Rehan
Opposite Party :- State Of U.P. Through Its Principal Secretary Home, Civil Secretariat U.P. Lucknow And Ors.
Counsel for Applicant :- Akash Dikshit,Sardar Alok Singh
Counsel for Opposite Party :- G.A.,S Malik E Ashtar Rizvi
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.
The present bail application has been filed on behalf of the applicant in Case Crime No. 265 of 2021 under Sections 363,366,376,323,506 IPC and Section 3/4 POCSO Act, Police Station Jahangirabad District Barabanki with a prayer to enlarge him on bail.
While pressing the application for bail, learned counsel for the applicant submitted that this case is outcome of the matrimonial dispute. The present FIR has been lodged against the applicant and the family members of the just to create the pressure. It is stated that the allegations levelled in the F.I.R. are completely false. Elaborating this aspect he submitted that if the victim was enticed away by the applicant prior to three months of lodging of present F.I.R. levelling therein the allegation based upon which the offence under Section 376 and other sections including sectin 3/4 POCSO Act could be attracted the informant ought to have lodged an FIR indicating therein that the applicant enticed away the daughter of the informant, however, no FIR was lodged From the FIR in dispute it is apparent that applicant solominized Nikah with the proscutrix, a copy of which is annexed as annexure no.2 to the bail application. He further stated that as per Mohamdan Law the age of marriage would be pubity and as per medical opinion which is on record the victim at the relevant time was about 18 years old. It is also stated that the prosecution has not indicated on what basis the date of birth has been indicated in the education record based upon which the prosecution says that the victim at the relevant time was minor. 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 25.12.2021 and as per the provisions of Section 35 of the POCSO Act,2012 the trial should preferably be concluded within one year from the date of taking cognizance by the trial court and possibility of conclusion of trial in near future is extremely bleak. The criminal history of the applicant has been explained in para-12 in the bail application.
In addition to above, learned counsel for the applicant submitted that the there are major contradictions in the statement of victim recorded under sections 161 and 164 Cr.P.C. He also stated that the victim and the applicant were in relation for about 7-8 months and the victim has stated that she has also solominized marriage with the applicant.
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 as also the fact that no FIR was lodged at the time when as per prosecution the applicant enticed away the daughter of the informant 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 Rehan 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 :- 11.8.2022
dk/
