Allahabad High Court
Ikrar (Minor) vs State Of U.P. And Another on 13 July, 2022
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 91
Case :- CRIMINAL APPEAL No. - 3566 of 2021
Appellant :- Ikrar (Minor)
Respondent :- State of U.P. and Another
Counsel for Appellant :- Geetam Singh
Counsel for Respondent :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up in the revised list.
Heard Sri Geetam Singh, learned counsel for the appellant and Sri Ankit Srivastava, learned counsel for the State and perused the material on record.
This criminal appeal is filed under Section 101(5) of Juvenile Justice (Care and Protection of Children) Act, 2015 against the impugned judgment and order dated 07.06.2021 passed by Special Judge POCSO Act, Kasganj in Bail Application No. 554 of 2021 (Ikrar vs. Sate of U.P.), arising out of Case Crime No. 390 of 2020, under Sections 377 I.P.C. and 3/4 of POCSO Act, Police Station- Dholna, District- Kasganj, by which bail application of the appellant has been rejected.
Counter affidavit dated 27.10.2021 of the State is on record. Learned counsel for the appellant states that he does not intend to file any rejoinder to the same.
An affidavit of compliance dated 27.9.2021 has been filed by the State mentioning therein in para no.5 that notice has been served on the complainant Dori Lal on 24.9.2021. The proof of the receipt of the same has been annexed as annexure no.1 to the said affidavit.
C.J.M., Kasganj vide his report dated 28.9.2021 has reported that notice has been served on the first informant. Despite service of notice on the first informant, no one appears on his behalf even when the matter has been taken up in the revised list.
The prosecution case as per FIR lodged on 9.12.2020 by the first informant Dori Lal is that on 8.12.2020, the applicant and co-accused Jahid committed unnatural sex on his son which was told by him who was having pain in his anal region. The incident was seen by Neelesh.
Learned counsel for the appellant argued that the appellant has been falsely implicated in the present case. It is further argued that the victim was subjected to medical examination but the doctor did not find any injury external or internal on his body. It is argued that the appellant is a juvenile as his date of birth is 18.12.2004, as such he was 16 years, 11 months and 17 days at the time of incident. The appellant is in jail since 9.12.2020. The appellant has no criminal history, para 22 of the affidavit filed in support of bail application has been placed before the Court. The appellant has been falsely implicated in the present case as some hot talk were exchanged between the appellant and other boys including the victim during the playing and to teach the lession to the appellant and co-accused, hence present FIR has been lodged, para 31 of the affidavit filed in support of bail application has been placed before the Court.
Per contra, learned counsel for the State opposed the prayer for bail and argued that the appellant is named in the FIR, in the statement of the the victim recorded under Section 161, 164 Cr.P.C. and there is role assigned to him for committing unnatural sex. Although the victim not receiving any injury is not disputed by him.
After having heard the learned counsel for the parties and perusing the records, it is evident that the victim has not received any injury on his body, appellant is in jail since 09.12.2020 and has no criminal history.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the appellant may be enlarged on bail.
Let the appellant-Ikrar (minor) be released on bail in the aforesaid case crime number on 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 appellant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The appellant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.
(iv) The appellant will not misuse the liberty of bail in any manner whatsoever. In case, the appellant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if appellant 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 I.P.C.
(v) The appellant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the appellant 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the appellant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the appellant to prison.
Accordingly, the appeal succeeds and the same stands allowed.
The impugned order dated 07.06.2021 passed by Special Judge POCSO Act, Kasganj is hereby set-aside.
(Samit Gopal, J.)
Order Date :- 13.7.2022
Gaurav
