Allahabad High Court
Vijay vs State Of U.P. And 3 Others on 14 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33943 of 2022
Applicant :- Vijay
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Amit Rana,Kamesh Kumar Arya
Counsel for Opposite Party :- G.A.,Niraj Kumar Tiwari
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.
1A. As per office report dated 19.10.2022, the informant has been served personally and despite name of counsel having been shown on behalf of informant, no one has present on his behalf.
2. This first bail application has been filed with regard to Case Crime No.186 of 2022, under Sections 363,376 IPC and Section 3/4 Protection of Children From Sexual Offences Act, registered at Police Station Kotwali Sahar, District Bijnor.
3. As per contents of FIR, the applicant allegedly enticed away the minor daughter of first informant.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him which could be apparent from the fact that the prosecutrix has not supported the prosecution version in her statements recorded under Sections 161 and 164 Cr.P.C. It is submitted that as per school leaving certificate, the date of birth of prosecutrix is 10.07.2004 but as per radio-logical age determined, age of applicant is indicated as 19 years. It is thus submitted that prosecutrix is major in age and was in a consensual relationship with applicant with whom she has admitted marriage.
5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that as per school leaving certificate, prosecutrix is clearly indicated to be minor and therefore a consent is immaterial.
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 although allegation of enticing away the minor daughter of informant has been alleged against the applicant but the prosecutrix herself has not supported the allegations in her statements recorded under sections 161 and 164 Cr.P.C. in which she has clearly indicated consensual relationship and marriage with the applicant. Radio-logical age of prosecutrix has been determined as 19 years although as per school leaving certificate the applicant is aged more than 17 years. As such indicating a variation of two years as per the radio-logical age, the benefit of doubt is required to be given to the applicant particularly since the prosecutrix has also admitted marriage with the applicant who is in jail since 13.05.2022.
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, Vijay, 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 :- 14.12.2022
Subodh/-
