Allahabad High Court
Shubham vs State Of U.P.And 3 Others on 1 November, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25182 of 2022
Applicant :- Shubham
Opposite Party :- State Of U.P.And 3 Others
Counsel for Applicant :- Amit Rai,Abdul Majeed,Garun Pal Singh,Sufia Saba
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record. As per counter affidavit filed by learned A.G.A., notices have been served upon the informant on 4th August, 2022 but no one has put in appearance on behalf of informant.
2. This first bail application has been filed with regard to Case Crime No. 114 of 2022 under Sections 363, 366, 376 (3) IPC & Section 3/4 (2) POCSO Act, P.S. Thana Bhawan, District Shamli.
3. As per contents of FIR, the minor grand daughter of informant was allegedly enticed away by the applicant.
4. Learned counsel for applicant submits that he has been falsely implicated in the charges levelled against him. It is submitted that as per statement of prosecutrix given to the doctor at the time of medical examination, she has stated that she was given an intoxicating drink by the sister of the applicant whereafter she was left alone with him. However the said allegation has not been reiterated either in her statement under Section 161 Cr.P.C. or under Section 164 Cr.P.C. It is submitted that there is material contradiction in the statement of prosecutrix under both the sections not only with regard to the incident itself but also with regard to place of recovery which also does not conform to the recovery memo. It is submitted that the F.I.R. also does not indicate any time or date of alleged disappearance. As such it is submitted that reasonable doubt is caste upon the prosecution version. It is submitted that the applicant is also student of same school and is in jail since 24th March, 2022 without having any criminal antecedents.
5. Learned A.G.A. appearing on behalf of State has opposed bail application with the submission that the statement of prosecutrix clearly indicates involvement of applicant. Charge sheet in the matter has already been filed on 28.4.2021.
6. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that there is material contradiction in the statement of prosecutrix recorded under Section 161 and 164 Cr.P.C. not only with regard to the incident itself but also with regard to place of recovery. The applicant himself is a student of Class 12th of the same school and is in jail since March, 2022 which would definitely be hampering his studies.
7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.
9. Accordingly bail application is allowed.
10. Let applicant Shubham involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) 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 court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) 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 Cr.P.C. If in the opinion of the trial court, 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 against him in accordance with law.
Order Date :- 1.11.2022
Prabhat
