Allahabad High Court
Farhan @ Mohd Farhan vs State Of U.P. And 3 Others on 13 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15402 of 2022
Applicant :- Farhan @ Mohd Farhan
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Firdos Ahmad,Jitendra Singh
Counsel for Opposite Party :- G.A.,Haseen Ahmad,Saurabh Basu
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State as well as learned counsel for informant and perused the record.
1A. On 24.11.2022, the following order had been passed:-
"Supplementary affidavit and counter affidavit are taken on record.
Learned counsel for applicant submits that applicant and the prosecutrix were in a consensual relationship. However learned A.G.A. as well as learned counsel for informant have drawn attention to the fact that victim herself in her statements under Section 161 and 164 Cr.P.C. has indicated her age as 14 years which is also corroborated by the age as per school certificate but as per the examination report of age issued by the Chief Medical officer, the age of prosecutrix is indicated as 22 years on the basis of general examination. It appears that there is considerable contradiction in the age of victim of about 8 years as per school records and the statement of victim viz-a-viz the medical report. As such it is directed that second ossification test of the victim shall be conducted by the Chief Medical Officer, Azamgarh and the report of same shall be submitted before this Court on or before 13th December, 2022.
List this case on 13th December, 2022 as a fresh case. Objections may be filed in the meantime. "
In pursuance of aforesaid direction, report has been submitted by Chief Medical Officer concerned dated 07.12.2022 giving the opinion on the basis of radio-logical finding that age of prosecutrix is above 19 years and less than 21 years. As such, the age of prosecutrix is clearly indicated to be an adult in the second ossification test report.
2. This first bail application has been filed with regard to Case Crime No.207 of 2021, under Sections 363, 366, 376 IPC and Section 3/4 Protection of Children From Sexual Offences Act, registered at Police Station Didarganj, District Azamgarh.
3. As per contents of FIR, the incident is said to have taken place on 29.12.2021 when the applicant allegedly enticed away the minor daughter of informant.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him and in fact the prosecutrix as well as the applicant were in a consensual relation-ship as would be evident from her statements recorded under sections 161 and 164 Cr.P.C. which would now be corroborated by the fact that the prosecutrix is clearly an adult.
5. Learned Additional Government Advocate appearing on behalf of State and learned counsel for informant have opposed the bail application but do not dispute the fact situation.
6. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
7. Considering submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that as per report of Chief Medical Officer concerned, radio-logical age of prosecutrix in the second ossification test has been determined as over 19 years and therefore she can be said to be an adult. In her statements recorded under sections 161 and 164 Cr.P.C., there is indication of consensual relation-ship between the two and there is no averment that the applicant had forcibly enticed her away from the legal guardianship of her guardian.
8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.
9. Accordingly bail application is allowed.
10. Let applicant, Farhan @ Mohd Farhan, involved in the aforesaid case crime 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 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 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.
(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 :- 13.12.2022
Subodh/-
