Suraj vs State Of U.P. And 3 Ors.
2022 Latest Caselaw 5772 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10490 of 2021
 

 
Applicant :- Suraj
 
Opposite Party :- State Of U.P. And 3 Ors.
 
Counsel for Applicant :- Abdul Samad
 
Counsel for Opposite Party :- G.A.,Amit Gupta
 

 
Hon'ble Saurabh Lavania,J.

Service of notice of present bail application on opposite party No. 2 is sufficient. On 09.03.2022, this Court observed that in case no one appears on behalf of the opposite party No. 2, the bail application shall be heard and disposed of on its own merit as also on the basis of record available before the Court. Today, when the case was called out, no one responded on behalf of the opposite party No. 2, however, learned AGA is present to oppose the bail application on behalf of the State. As such, this Court proceeded to hear the bail application on merits.

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. 592 of 2020, under Sections- 363, 366, 506, 507, 376 IPC and 5/6 POCSO Act, Police Station- Bachhrawan, District- Raebareli with a prayer to enlarge him on bail.

While pressing the present bail application, learned counsel for the applicant submitted that the story of prosecution, as indicated in the FIR as also based upon the statements of victim made by her before the Investigating Officer as also before the Court concerned as required under Sections 161 and 164 Cr.P.C., is completely false.

Further submission is that as per the FIR, the incident is of 25.03.2020 and the FIR in issue was lodged on 27.09.2020. There is sufficient delay in lodging the FIR. This delay is fatal to the case of prosecution.

Further submission is that as per the allegations made in the FIR, the named accused persons enticed away the daughter of the informant on 25.03.2020 at about 1:00 P.M., who was recovered from the house of Mangal, brother-in-law of the applicant, R/o- Paschimgaon, which is in the jurisdiction of P.S. Bachhrawan, District- Raebareli. It further appears from the FIR that the victim left here parental house on her own volition and was carrying Rs. 10,000/- as also Mangalsutra, golden chain and her Aadhar Card and in this view of the matter, it can be deduced that the victim left her parental house for solemnizing marriage with the applicant. The FIR also contains the allegations regarding threatening the informant and his family members. As such, taking note of the contents of FIR, the same was registered against the named accused persons under Sections 363, 366, 506, 507 IPC. During investigation, the name of other accused were dropped and the charge-sheet has been filed only against the applicant. This fact has not been disputed by learned AGA.

At this stage, learned counsel for the applicant also stated that the applicant is in jail since 17.12.2020 and the possibility of conclusion of trial in near future is extremely bleak.

In continuation, learned counsel for the applicant stated that the story of prosecution is false and concocted and the same can be deduced from the fact that in the FIR, though was lodged after recovery of victim, there is no allegation on the basis of which offence under Section 376 IPC read with Section 5/6 POCSO Act, can be attracted and thereafter, based upon the statement of victim under Section 161 Cr.P.C., which was recorded after much delay on 19.10.2020 as also the statement of victim recorded under Section 164 Cr.P.C. on 10.12.2020, the prosecution added Section 376 IPC and Section 5/6 POCSO Act.

Learned counsel for the applicant based upon the contents of FIR and the statements of victim further submitted that in fact the applicant and victim were having affair and they were intend to solemnize marriage and for the same purpose, the victim on her own volition went with the applicant, however, she was recovered by the family members that too without intervention of police personnel and it appears that just to teach the lesson and increase the pressure upon the applicant, the present FIR has been lodged by moving an application before the Mahila Ayog, Lucknow. In this view of the matter, the story of prosecution is doubtful. Based upon the medical report, it is stated that the same does not support the story of prosecution and moreover, before the doctor concerned, the victim has not levelled any allegation against the applicant. In these circumstances, the applicant is entitled to be released on bail.

Learned AGA vehemently opposed the prayer for bail. He submitted that as per the certificate issued by Principal, Prathmik Vidyalaya, Village- Adhaura, District- Raebareli, the victim at the time of incident was 16 years and as per medical opinion, the victim, at the time of incident, was 17 years, as such, even if the story as indicated by the learned counsel for the applicant that this is a case of consent, is taken on its face value, even in that event, the same is liable to be rejected, as consent of a minor is no consent in the eyes of law. Learned AGA, however, could not dispute the fact that the FIR was lodged after recovery of victim and in the FIR, there is no allegation based upon which Sections 376 IPC and 5/6 POCSO Act can be attracted.

In response to above, learned counsel for the applicant submitted that as per the case of prosecution itself, the victim, at the time of incident, was about 16 or 17 years old, as such, there is discrepancy in the age of victim, hence, it is doubtful that whether the victim was minor or major at the time of incident. In clarification, he submitted that as per the pronouncements in regard to determination of age, the benefit of 2 years is liable to be extended in favour of the applicant. Thus, at this state of bail, the benefit of pronouncements on the issue of determination of age is liable to be extended in favour of the applicant. In this regard, learned counsel for the applicant placed reliance on the judgment of Apex Court passed in Civil Appeal No. 4532 of 2018 (Suhani and Anr. v. State of State of U.P. and Ors.).

It is also stated that the charge-sheet has already been filed and in this view of the matter, the applicant is not in a position to tamper with the evidence of prosecution and if the applicant is released on bail and he will not misuse the liberty granted by the Court and would cooperate in trial.

Considering the facts and circumstances of the case as also the nature of allegations, arguments advanced by learned counsel for the parties, the period for which the applicant is in jail, contents of FIR, delay in lodging the FIR, delay in recording the statements of victim as also the statements of victim and without expressing any opinion on merits of the case, I find it to be a fit case for enlarging the applicant on bail.

Let the applicant- Suraj be released on bail in the aforesaid case crime on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-

(1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.

(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.

(3) Applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 Cr.P.C.

(4) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

(5) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

(6) 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.

Considering the fact that the incident is of 25.03.2020 and the applicant is in jail since 17.12.2020, this Court is of the view that justice would suffice if trial is expedited. Accordingly the concerned trial court is directed to conclude the trial with expedition.

Order Date :- 4.7.2022

Arun/-