Allahabad High Court
Nazim vs State Of U.P. 3 Others on 14 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17080 of 2022
Applicant :- Nazim
Opposite Party :- State Of U.P. 3 Others
Counsel for Applicant :- Madan Singh
Counsel for Opposite Party :- G.A.,Mridul Chandra Tiwari,Vatsala Upadhyay
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State, learned counsel for informant and perused the record.
2.This first bail application has been filed with regard to Case Crime No.428 of 2021 under Sections 363, 366, 376, 120B I.P.C. and Section 3/4, Protection of Children from Sexual Offences Act, P.S.Bhojpur, District Moradabad.
3. As per contents of first information report, the incident is said to have taken place on 11.10.2021 when applicant allegedly enticed away minor daughter of informant.
4. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him. Attention has been drawn to the fact that F.I.R. has been filed belatedly after more than 11 days without any cogent explanation for the same and, therefore, indicates improvement and deliberation. It is submitted that the parties were in fact in a consenting relationship and the radiological age of alleged victim has been determined as 16 years but as per decision of Hon'ble the Supreme Court in Jaya Mala v. Home Secretary, Government of J & K reported in 1982 (2) SCC 538, a variation of two years with regard to radiological age is to be taken as possible. It is submitted that there is material contradiction in the statements of alleged victim under Sections 161 and 164 Cr.P.C.and that medical report also does not corroborate the allegations.
5. Learned Additional Government Advocate appearing on behalf of State as well as learned counsel for informant have opposed the bail application with submission that the victim being minor of age, her consent is immaterial. Learned counsel for informant has also drawn attention to opinion of the Doctor indicating that sexual violence cannot be ruled out. It is further submitted that statements of victim under Sections 161 and 164 Cr.P.C. clearly corroborate the allegations levelled against applicant.
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 the submissions advanced by learned counsel for the parties and upon perusal of the material on record, prima facie, and subject to further evidence being led in trial, it appears that as per radiological examination, age of prosecutrix has been determined as 16 years but variation of two years thereof can be taken in terms of the judgment of Hon'ble the Supreme Court indicated herein above. There appears to be material contradiction in the statement of prosecutrix particularly with regard to narration of the incident. Medical report does not indicate any external or internal injury over body of prosecutrix. The medical report does not appear to support the allegations levelled against applicant who is under incarceration since 08.11.2021 with trial not yet having commenced. As such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case.
8. Accordingly bail application is allowed.
9. Let applicant Nazim, 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
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