Ajay Kumar vs State Of U.P.
2022 Latest Caselaw 3556 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3157 of 2021
 

 
Applicant :- Ajay Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Krishna Kumar Mishra,Ramesh Chandra Kushwaha,Syed Mohammad Abbas Abdy
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Learned counsel for the applicant has filed order-sheet of the sessions trial No. 38 of 2018, which is taken on record.

Heard Shri Ramesh Chandra Kushwaha, 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, being third bail application has been filed on behalf of applicant, Ajay Kumar under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 953 of 2017 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-Dhoomanganj, District-Allahabad during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge, Court No. 10, Allahabad vide order dated 17.1.2018.

The first bail application filed on behalf of the applicant, being Criminal Misc. Bail Application No. 15839 of 2018 was rejected by a co-ordinate Bench of this Court vide order dated 30.4.2018. Second bail application, being Criminal Misc. Bail Application No. 47771 of 2019 was dismissed for want of prosecution by another co-ordinate Bench of this Court vide order dated 15.12.2020.

Brief facts of the case are that the First Information Report dated 24.9.2017 has been lodged against the applicant by the father of the victim against the applicant and two other named persons stating that the applicant who is the son-in-law (damad) of the first informant, that the applicant with the help of other named accused enticed away his minor daughter, aged about 15 years on 14.9.2017 at 12.00 midnight. In the morning he did not find her daughter.

After lodging of the first information report statement of the victim under Section 161 Cr. P. C. has been recorded on 16.10.2017. Medical examination of the victim was also conducted on 16.10.2017 at 5.30 P. M. Statement of the victim under Section 164 Cr. P. C. has been recorded on 19.10.2017. Radiological examination of the victim was conducted on 17.10.2017. After recording the statements of the first informant and other prosecution witnesses under Section 161 Cr. P. C., the investigating officer filed charge-sheet against the applicant on 3.2.2018 and the applicant was arrested on 6.11.2017.

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 the school certificate date of birth of the victim is 13.9.2002 and on 14.9.2017, i.e. the date of incident, victim was 15 years old. As per ossification report dated 17.10.2017, epiphyses of right elbow joint, right knee joint, right ankle joint and right shoulder of the victim were found fused and as per radiological examination report, age of the victim was ascertained above 18 years at the time of medical examination on 17.10.2017. It is further argued that the victim has travelled with the applicant to the glass factory village and she lived with the applicant in a rented house about one month. Charges have been famed on 13.7.2018 but the prosecution has not examined any witness till today. Certified copy of the order-sheet since 3.2.2018 to 1.4.2022 is taken on record. Victim has stated in her statement recorded under Section 161 Cr. P. C. that she went from her house on 14.9.2017 at 12.00 midnight on her own free and sweet will and she made physical relations with the present applicant with her consent. It is further argued that there is material contradictions and improvement between the statements of the victim recorded under Section 161 and 164 Cr. P. C.

It is further argued that charge has been framed on 13.7.2018 and the prosecution has not examined single witness till today. The applicant has no 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 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) the applicant is languishing in jail since 6.11.2017;

(b) the applicant is real son-in-law of the first informant;

(c) charges have been framed by the trial court on 13.7.2018 and the prosecution has not examined any witness till today;

(d) as per school certificate, age of the victim was 15 years at the time of the incident but as per radiological examination report, the age of the victim has been ascertained above 18 years;

(e) there is material contradictions and improvement between the statements of the victim recorded under Section 161 and 164 Cr. P. C. It would not be appropriate to discuss the same at this stage; and

(f) the victim has travelled with the applicant and resided with him in a rented house.

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, Ajay Kumar 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 :- 20.5.2022

HR