Shambhu vs State Of U.P.And Another
2022 Latest Caselaw 3401 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33617 of 2020
 

 
Applicant :- Shambhu
 
Opposite Party :- State Of U.P.And Another
 
Counsel for Applicant :- Deepak Kumar Dubey,Santosh Kumar Tripathi,Yadavendra Dwivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Santosh Kumar Tripathi, learned counsel for the applicant, Shri Manoj Kumar Dwivedi, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant, Shambhu under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in S. T. No. 296 of 2020, arising out of Case Crime No. 296 of 2020 for offence punishable under Sections-363, 366 and 376 of the Indian Penal Code and Sections-3/4 of POCSO Act, registered at Police Station-Madhiyan, District-Mirzapur during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge / Special Judge (POCSO) Act, Mirzapur vide order dated 13.8.2020.

Brief facts of the case are that the First Information Report dated 10.5.2020 has been lodged against the applicant by the father of the victim stating that the applicant enticed away his minor daughter, aged about 15 years on 8.5.20220 at about 2.00 A. M. when she was sleeping in the house. He searched his daughter but could not find out her.

After lodging of the first information report, statement of the victim under Section 161 Cr. P. C. has been recorded on 16.5.2020. Medical examination of the victim was conducted on 18.5.2020. Statement of the victim under Section 164 Cr. P. C. was recorded before the magistrate concerned. After recording the statement of the other prosecution witnesses, charge-sheet has been submitted against the applicant and the applicant was arrested on 11.5.2020.

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 contended that as per ossification report dated 20.5.2020, epiphyses of right elbow joint, right knee joint and right ankle joint of the victim were found fused and as per radiological examination report, age of the victim was ascertained between 17 to 18 years at the time of medical examination. It is further argued that that the victim has not supported the prosecution case in her statement recorded under Section 161 Cr. P. C. and she stated that on 8.5.2020 at about 2.00 A. M. she went to the house of the applicant and he has not committed any wrong to her. It is further contended that there are material contradictions and improvements in the statements of the victim recorded under Sections 161 and 164 Cr. P. C. The victim has stated that the applicant is married person but she liked him. The applicant has no criminal history and he has not been convicted by any Court in any cognizable offence 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 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;

(i) As per ossification report, epiphyses of right elbow joint, right knee joint and right ankle joint were found fused and as per radiological examination report, age of the victim was ascertained between 17 to 18 years on 20.5.2020.

(ii) Victim has not supported the prosecution case in her statement recorded under Section 161 Cr. P. C. and stated that she went to the house of the applicant on her own free and sweet will on 8.5.2020 at 2.00 A. M. and she travelled with the applicant to various places.

(iii) There are material contradictions and improvement between the statements recorded under Section 161 and 164 Cr. P. C., it would not be appropriate to discuss the same at this stage.

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, Shambhu 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, 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 :- 19.5.2022

HR