Allahabad High Court
Furkan Alias Sonu vs State Of U.P. And Anr. on 22 July, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- CRIMINAL APPEAL No. - 2283 of 2018
Appellant :- Furkan Alias Sonu
Respondent :- State Of U.P. And Anr.
Counsel for Appellant :- Gulam Ali Rashidi,Anwar Alam,Chandra Shekhar Sinha,Fareeda Jalal,Gaurav Verma,Lateef Ahmad Khan,Prem Kumar Srivastava,Vimal Kishor Singh
Counsel for Respondent :- Govt. Advocate
Hon'ble Pankaj Bhatia,J.
Despite service of notice, no one on behalf of opposite party no.2 is present.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present appeal has been filed under Section 14-A (2) of SC/ ST Act challenging the order dated 05.10.2018 passed by learned Additional District & Sessions Judge, Room No. 8, Lucknow, whereby the bail application filed by the appellant has been rejected.
In the present case, FIR in question was lodged on 05.04.2018 by the father of the victim stating that the applicant had enticed away the daughter of the informant, who was aged about 14 years. After recovery, the statement of the victim was recorded under Section 161 Cr.P.C., which is on record, in which she stated that she had gone with the applicant on her own free will. She also made statement with regard to intercourse in between them. Subsequently, in the statement recorded under Section 164 Cr.P.C. also she reiterated the version that she was stated in the statement recorded under Section 161 Cr.P.C.
Learned counsel for the applicant argues that from perusal of the statement under Sections 161 and 164 Cr.P.C., it is clear that the victim had gone on her own free will with the applicant. He argues that it is a classic case of Romeo Juliet effect. He further argues that the applicant has no criminal antecedents and the trial has not concluded and the applicant is in custody since 08.04.2018.
Learned A.G.A. on the other hand opposes the bail application on the ground that admittedly the age of the girl is less than 18 years and thus presumption under the POCSO Act would apply against the applicant.
There is nothing on record to demonstrate that the applicant has any criminal antecedents and the any threat has ever been expressed by the victim or her family members, which is issued at the instance of the applicant or his family members.
Considering the submissions made at the bar, on perusal of FIR, which was lodged at the instance of the father of the victim to the effect that the applicant has enticed away his daughter aged about 14 years, was not corroborated when the statement of the victim was recorded under Sections 161 and 164 Cr.P.C., wherein she stated that she had gone on her own free will. Although, in view of the statutory provisions under the POCSO Act, the nature of the offence is grave, however, considering the fact that the applicant is in custody since 08.04.2018 and has no criminal antecedents coupled with the fact that there is nothing on record that the applicant if enlarged on bail, would have any adverse effect on the trial, the appellant is entitled to be enlarged on bail.
Accordingly, the appeal is allowed and the impugned judgment and order dated 05.10.2018 passed by learned Additional District and Sessions Judge, Room No. 8, Lucknow, is set aside.
Let the appellant Furkan alias Sonu be released on bail in Case Crime No.213 of 2018, under Sections 363, 366, 376 IPC, Section 3(2) V (G) SC/ST Act and Section 3/4 of POCSO Act, Police Station Gosaiganj, District Lucknow on his furnishing a personal bond and two sureties of Rs. 20,000/ each to the satisfaction of the court concerned, subject to the following conditions:-
(1) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence, if 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;
(2) The appellant shall remain present before the trial court on each date fixed, either personally or through their 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;
(3). In case, the appellant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the 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 of the Indian Penal Code.
(4) The appellant 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
Order Date :- 22.7.2022
Shafique
