Allahabad High Court
Hafij @ Chhotey vs State Of U.P. And 3 Others on 4 November, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36401 of 2022
Applicant :- Hafij @ Chhotey
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Sudarshan Singh
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Affidavit filed by learned Additional Government Advocate is taken on record in which it has been stated that informant has been served personally in August, 2022 but no-one has put in appearance on his behalf. The affidavit is taken on record.
1A. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.
2. This first bail application has been filed with regard to Case Crime No.33 of 2018 under Sections 363, 366, 376 I.P.C. and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Taraya Sujan, District Kushi Nagar.
3. As per contents of first information report, the incident has taken place on 18.02.2018 when the applicant is said to have enticed away minor daughter of informant.
4. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him and that the prosecutrix has not supported allegation in her statements under Section 161 and 164 Cr.P.C. It is submitted that earlier the prosecutrix along with applicant had filed Crl. Misc. Writ Petition No.24593 of 2018 seeking protection in which appropriate orders were passed on 06.09.2018. It is submitted that subsequently the prosecutrix was produced before the Chief Judicial Magistrate who in his order dated 04.10.2018 has clearly recorded the fact that prosecutrix did not want to live with her parents or in the Women Shelter Home and, therefore, was free to live as per her own volition. It is submitted that applicant and prosecutrix have subsequently got married and she is living with him and the couple also have two children.
5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with submission that as per the School Certificate, the prosecutrix was minor at the time of incident and, therefore, even as per her statement under Section 161 Cr.P.C. cognizable offence is made out.
6. 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."
7. Considering the submissions advanced by learned counsel for the parties and upon perusal of the material on record, prima facie, and subject to further evidence being led in trial, it appears that prosecutrix had joined the applicant in filing a petition for protection from her parents in which appropriate directions were passed whereafter her statements under Section 161 and 164 Cr.P.C. were also recorded in which she has not supported allegation levelled against applicant. From the order of Chief Judicial Magistrate concerned, it also appears that the prosecutrix did not wish to live with her parents. Learned counsel for applicant has submitted that the two have subsequently been married and are living together as husband and wife. The applicant is in jail since 14.07.2022 and does not have any previous criminal history. As such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case.
8. Accordingly bail application is allowed.
9. Let applicant Hafij @ Chhotey, 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 :- 4.11.2022
kvg/-
