Allahabad High Court
Kamal Singh S/O Sri Santosh Singh vs State Of U.P. Thru. Addl. Chief ... on 11 August, 2022
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 11
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5463 of 2022
Applicant :- Kamal Singh S/O Sri Santosh Singh
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Lko.And 3 Others
Counsel for Applicant :- Sant Lal Dixit,Virendra Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
Supplementary affidavit filed by learned counsel for the applicant, is taken on record.
It appears from the order dated 30.05.202 that the service upon opposite party no.2 is sufficient. However, no one appears on behalf of opposite party no.2 to oppose the present bail application.
Learned A.G.A. is present in Court. In these circumstances, this court has proceeded the case on merit.
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. 50 of 2022 under Section 376, 506 IPC and 3/4 of POCSO Act, 2012 Police Station Ghunghter, District Barabanki with a prayer to enlarge him on bail.
While pressing the application for bail, learned counsel for the applicant submitted that the informant is cousin sister-in-law of the present applicant and this informant is habitual in lodging the F.I.R.. Elaborating this aspect, he stated that earlier the informant of the present case, lodged an FIR dated 14.04.2014 against one Tej Kumar Tiwari and as per contents of this FIR, the accused Tej Kumar Tiwari committed rape with daughter of the informant and one of the daughter is also victim in the present case. At the relevant time, victim of the present case was 9 years old and the sister of the victim was about 6 years old. He further submitted that the victim in the instant case at the relevant time was about 18 years old, as per the medical opinion, and the prosecution has not indicated the basis of date of birth indicated in the school leaving certificate which is the basis of prosecution to attract the Section 3/4 of the POCSO Act,2012. He further submitted that the present FIR has been lodged against the applicant just to create pressure in relation to the property of one Mahesh Singh who earlier was staying with the informant and presently residing with the applicant. He also stated that if the case of the prosecution is taken on its face value then it is a case of consent or false promise of marriage as such also the offence under section 376 IPC would not be attracted. His further submission is that the applicant is languishing in jail since 16.03.2022 and possibility of conclusion of trial in near future is extremely bleak and the applicant has no criminal history as such the applicant is entitled to be released on bail.
Learned A.G.A. opposed the prayer for grant of bail. He stated that though the assertion has been made in respect of property but there is no document on record to support the said contents. He further submitted that the victim as per the education certifiate which is available with the prosecution at the relevant time was about 15 years of age as such the consent of the minor is not admissible under law. Therefore, the bail application of the applicant may be rejected.
In response, learned counsel for the applicant submits that considering the age opined by the doctor concerned and the age relied upon by the prosecution, it is apparent that the age of the victim is in dispute which is subject to the evidence adduced by the parteis before the trial court concerned as such 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 earlier also this informant lodged an FIR against Tej Kumar Tiwari and presently she has lodged an FIR against the applicant as such the conduct of the informant is also liable to be considered at this stage. Moreover, from the earlier FIR of 2014 and present FIR it appears that informant is abusing the process of law.
Considering the above facts and circumstances of the case, coupled with the contentions raised by the learned counsel for both sides prima facie it appears that informant is habitual in lodging of FIR and present FIR appears to be abuse of process of law and without entering into the merit of the case, the applicant is entitled to be released on bail.
Application is allowed.
Let the applicant Kamal Singh 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
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