Allahabad High Court
Haidar vs State Of U.P. on 11 May, 2022
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4342 of 2021
Applicant :- Haidar
Opposite Party :- State of U.P.
Counsel for Applicant :- Kumar Vikrant,Ashish Kumar Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Pachori,J.
Heard Shri Ashish Kumar Mishra and Kumar Vikrant, learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed on behalf of the applicant Haidar under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 873 of 2018 for offence punishable under Sections 363, 366, 376, 368 of the Indian Penal Code, registered at Police Station- Sector 24, Noida, District Gautambuddha Nagar, during pendency of the trial, after rejecting the bail application of the applicant by Additional Session Judge FTC-1 GautamBuddha Nagar by vide order dated 30.1.2020.
Brief facts of the case are that the First Information Report dated 25.11.2018 was lodged against the applicant under section 363, 366, 376, 368 of IPC by mother of the victim, stating that the applicant has enticed away his minor daughter aged about 17 years on 16.11.2018. The first informant made unsuccessful efforts to know the whereabouts of her daughter. The first informant further stated that she did not tell anyone about the aforementioned incident as she would face humiliation of society.
After lodging the first information report, statement of the victim was recorded on 12.12.2018, under Section 161, Cr.P.C.. Medical examination of the victim was conducted on 18.12.2018. Statement of the victim under Section 164, Cr.P.C. was recorded on 12.12.2018. After recording the statement of the prosecution witnesses under Section 161, Cr.P.C., charge sheet has been submitted on 14.01.2019. The applicant was arrested on 14.01.2019.
Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per First Information Report the age of the victim was 17 years at the time of incident. As per ossification test report, epiphysis of elbow, knee, wrist of the victim were found fused and age of the victim was 18 years on 10.12.2018. It is further argued that victim has not supported the prosecution case in her statement recorded under section 161 Cr.P.C. There is material contradiction and improvement between the statement of the victim recorded under section 161 Cr.P.C. and 164 Cr.P.C. It is next contended that the victim has travelled to Kaliar, Bhopal and Noida with the applicant.
He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail.
Per contra, learned A.G.A. and learned counsel for the first informant have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging of the F.I.R, cannot be said to be fatal to the case at this juncture while considering the application of bail. But they could not point out any material to the contrary. They further submit that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
After considering the facts of the present case it prima facie appears that;
(a) As per first information report, age of the victim was 17 years.
(b) As per ossification test report, age of the victim was 18 years at the time of radiological examination on 17.12.2018;
(c) Victim has travelled to Kalior, Bhopal and Noida with the applicant;
It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicant, Haidar be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) 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 of Cr.P.C.
(iv) 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 the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.
The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, keeping in view the law laid down by the Supreme Court in the case of Alakh Alok Srivastava v. Union of India & Anr., AIR 2018 SC 2440, if there is no other legal impediment.
It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
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.
Order Date :- 11.5.2022
Neetu
