Anil @ Vipin vs State Of U.P.
2022 Latest Caselaw 2463 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48487 of 2021
 

 
Applicant :- Anil @ Vipin
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Safiullah
 
Counsel for Opposite Party :- G.A.,Ramendra Pal Singh,Veerendra Kumar Shukla
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Safiullah, learned counsel for the applicant, Sri Arvind Kumar Singh, Advocate holding brief of Sri Veerendra Kumar Shukla and learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Anil @ Vipin under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 504 of 2020, for offence punishable under Sections 363, 366, 376 of the Indian Penal Code, and Section 3/4 Protection of Children from Sexual Offences Act, 2012, registered at Police Station- Rajpura, District- Sambhal, during pendency of the trial, after rejecting the bail application of the applicant by Special Judge (POCSO Act)/ Additional Sessions Judge, Sambhal at Chandausi vide order dated 24.06.2021.

Brief facts of the present case are that the first information report dated 08.11.2020 has been lodged by the father of the victim against three named and other unknown persons stating therein that on 06.11.2020 the named co-accused persons enticed away his minor daughter aged about 13 years. It is further alleged that his daughter has taken Rs. 20,000/ in cash, a pair of gold earrings, a ring, an Aadhar card and a mobile phone from her house.

After lodging of the first information report, the statement of the victim was recorded under Section 161 Cr.P.C. on 01.04.2021; medical examination of the victim was conducted on 03.04.2021; statement of the victim was recorded under Section 164 Cr.P.C. on 07.04.2021. After recording the statement of prosecution witnesses under Section 161 Cr.P.C., the Investigating Officer has submitted charge-sheet on 05.05.2021 against the applicant. The applicant was arrested on 02.04.2021.

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 school certificate, the age of the victim was 16 years at the time of incident. It is further submitted that as per ossification test epiphysis of elbow, knee and wrist of the victim were found fused and according to the radio-logical report, the age of the victim was 18 years at the time of ossification test which was conducted on 05.04.2021. It is further submitted that the victim has not supported the prosecution case in her statement recorded under Section 161 and stated that she left her house on her own free and sweet will and she solemnized marriage with the applicant. It is further submitted that there is material contradiction/ improvement between the statement of the victim recorded under Sections 161 and 164 of the Cr.P.C. It is further submitted that victim has stated in her statement that she travelled with the applicant from Anoopsahar to Delhi.

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. as well as 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 F.I.R. cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits 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, the age of the victim was 16 years at the time of the incident;

(b) As per ossification test report the age of the victim was 18 years at the time of the incident;

(c) Victim has not supported the prosecution case in her statement recorded under Section 161 of Cr.P.C., there is material contradiction/ improvement between the statement of the victim recorded under Sections 161 and 164 of the Cr.P.C., it would not be appropriate to discuss the same at this stage;

(d) As per statement of the victim recorded under Section 161 Cr.P.C. wherein she stated that she left her house on her own free and sweet will and she travelled with the applicant from Anoopsahar to Delhi;

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, Anil @ Vipin 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/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, 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 along-with 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

Ishan