Allahabad High Court
Mannan vs State Of ... on 22 July, 2022
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 11
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 989 of 2022
Applicant :- Mannan
Opposite Party :- State Of U.P.Thru.Prin.Secy.Deptt.Of Home And 3 Others
Counsel for Applicant :- Rakesh Kumar Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
As per office report dated 24.02.2022, service upon opposite party No.2 is sufficient. Today, when the case was called out no one is present on behalf of the opposite party No.2 to oppose the bail application. However, learned AGA is present.In these circumstances, this Court proceeded to hear the matter on merits.
Heard learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. and perused the record.
The present bail application has been filed by the applicant seeking bail in Case Crime No.170 of 2019, under Sections 363,366,376 I.P.c. and Section 3/4 POCSO Act, Police Station-Ram Sanehi Ghat, District Barabanki.
At the very outset, learned counsel for the applicant submitted that the applicant is in jail since 05.07.2021 and the possibility of conclusion of trial in near future is extremely bleak. It is further submitted that applicant has not committed any crime and the allegations levelled in the F.I.R. are completely false and concocted.
Submissions of learned counsel for the applicant is that the victim at the relevant time was matured enough and she presented herself to be major. She was having affair with the applicant and for this reason she on her own volition went with the applicant and solemnized marriage and out of this wedlock there is a minor child who was born on 22.05.2020, which is evident from the statement of the victim recorded under Section 164 Cr.P.C. In the same terms the victim has stated before the Investigating Officer. Learned counsel for the applicant further submitted that the fact that the victim at the relevant time was matured enough is also apparent from the opinion of the Doctor annexed at Page No. 36 of the present bail application. The opinion of the Doctor indicated at Page 36 of the present bail application has not been disputed by the learned A.G.A.
Further submission of learned counsel for the applicant is that the prosecution has indicated the age of the victim as 17 years, as such the prosecution added Section 376 I.P.C. and Section 3/4 POCSO Act. In clarification, it is stated that the F.I.R. was initially lodged under Sections 363,366 I.P.C. based upon the allegations levelled therein which are to the effect that the applicant enticed away the sister of the informant. In these circumstances, the applicant is entitled to be released on bail.
Mr. Shailendra Tripathi, learned A.G.A. has opposed the prayer for bail. He stated that the victim as per the story of the prosecution was minor, as such her consent is no consent in the eye of law and being so the applicant is not entitled to be released on bail.
In response thereof, learned Counsel for the applicant has submitted that it appears from the record of the prosecution itself that there is discrepancy in the age of the victim and, thus, there is a dispute regarding age of the victim. As such, at this stage of the bail, the benefit of pronouncements in relation to the issue of determination of age is liable to be extended in favour of the applicant. In this regard, reliance has been placed on the judgment passed in the HABEAS CORPUS No. 21284 of 2018 (Deepa through her next friend Mithun v. State of U.P. and others), decided on 03.08.2018. Moreover, the issue of age is subject to the evidence adduced by the parties before the trial Court.
Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and keeping in mind the statements of victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C.and keeping in mind the contents of the FIR as also the medical opinion of doctor as also the welfare of minor child and without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
Let applicant - Mannan be released on bail in the aforesaid Case Crime Number 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:-
(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 misuse 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 fail 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.
(v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(vii) 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.
Order Date :- 22.7.2022
Arjun/-
