Basruddin @ Raja vs State Of U.P.
2022 Latest Caselaw 2462 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27096 of 2021
 

 
Applicant :- Basruddin @ Raja
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Shitlesh Pandey,Kunwar Abhishek,Manoj Yadav
 
Counsel for Opposite Party :- G.A.,Sanjay Kumar
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Manoj Yadav, learned counsel for the applicant, Shri Sanjay Kumar, learned counsel for the first informant, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Basruddin @ Raja under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 88 of 2020 for offence punishable under Sections 363, 366, 376, 504, 506 of the Indian Penal Code and Section 5(j) (2)/6 of Protection of Children from Sexual Offences Act, registered at Police Station Sukhpura, District Ballia, during pendency of the trial, after rejecting the bail application of the applicant by Additional Session Judge Court No.-8 vide order dated 1.07.2021.

Brief facts of the case are that the First Information Report dated on 21.07.2020 has been lodged against the applicant and other five named person by the father of the victim stating that on 13.07.2020 at about 3.00 p.m., co-accused Shivani @ Chhoti came to the house of the first informant and took his daughter aged about 17 and half years, on the pretext of buy bangles from market and co-accused Shivani left his daughter at the house of the applicant. Thereafter, applicant enticed away his daughter. After that the first informant went to the house of the applicant to inquire about the aforementioned incident. During the course of said inquiry father, mother, sister and brother of the applicant told the first informant to forget his daughter, as they have sent her to a distant place from she would not return. The first informant made unsuccessful efforts to find her daughter. The daughter of the first informant took 4,200/- Rs., a gold chain weighing 12 grams, 3 gold earrings weighing 18 grams, 2 gold rings 6 grams, her pass-book and her certificates from her house.

After lodging the first information report, statements of the victim under Section 161 and 164 Cr.P.C. have been recorded on 14.6.2021. Victim has denied her internal medical examination on 03.07.2021 but she was found pregnant and the age of foetus was 36 weeks and 2 days in Ultrasound Report dated 03.07.2021. After recording the statement of the prosecution witnesses under Section 161, Cr.P.C., charge sheet has been submitted on 15.09.2021. The applicant was arrested on 29.06.2021.

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 High School Certificate, the date of birth of the victim was 15.07.2002, age of the victim was 17 years, 11 months and 28 days at the time of incident. It is further submitted that as per ossification test report, age of the victim was 18 years on 27.05.2021. It is further submitted that victim has travelled to Allahabad and Jaipur with the applicant and stayed with him in a room for 11 months. Victim has not supported the prosecution case in her statements recorded under Section 161 and 164 Cr.P.C. Victim has stated in her statements recorded under Section 161 and 164 Cr.P.C. that she has gone with the applicant on her own free and sweet will and solemnized marriage with him in the temple.

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, Sri Ram Mohit Yadav, 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 the FIR 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 school certificate, age of the victim was 17 years 11 months 28 days at the time of incident;

(b) As per ossification test report, age of the victim was above 18 years on 27.5.2021;

(c) Victim has not supported the prosecution case in her statements recorded under Section 161 and 164 Cr.P.C. It would not be appropriate to discuss the same at this stage.

(d) Victim has travelled Allahabad and Jaipur with the applicant and stayed with him for 11 months in a rented room;

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, Basruddin @ Raja 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