Allahabad High Court
Govinda vs State Of U.P. And 2 Others on 3 August, 2023
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:156837
Court No. - 66
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54540 of 2021
Applicant :- Govinda
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Sushil Kumar Tewari,Braham Singh
Counsel for Opposite Party :- G.A.
Hon'ble Ajay Bhanot,J.
This is the second bail application.
Shri Chandan Agrawal, learned AGA contends that the police authorities in compliance of the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served the bail application upon the victim/legal guardian as well as upon the CWC.
By means of the the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 254 of 2020 at Police Station- Nawabganj, District- Farrukhabad, under Sections 376D, 506 IPC, Section 5/6 POCSO Act. The applicant is in jail since 27.8.2020.
The first bail application of the applicant was rejected by this Court on 16.08.2021.
Learned counsel for the applicant submits that the applicant is a poor person who does not have any effective pairokar. Hence certain facts which are critical for adjudication of this case relating to the age of the victim could not be stated in the first bail application.
Learned counsel for the applicant seeks leave and is permitted to refer the aforesaid facts in this bail application.
The following arguments made by Shri Braham Singh, learned counsel on behalf of the applicant,which could not be satisfactorily refuted by Shri Surendra Mohan Mishra, learned counsel for the informant and Shri Chandan Agrawal, learned AGA from the record, entitle the applicant for grant of bail:
1. The applicant has contested the minority of the victim as stated in the prosecution case.
2. The victim was wrongly shown as a minor of 14 years in the F.I.R. only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.
3. The age of the victim is assailed on the following grounds in light of the judgment rendered by this Court in Criminal Misc. Bail Application No. 55026 of 2021 (Monish Vs State of U.P. and others).
(i). The victim under in her statement under Sections 161 Cr.P.C. has stated that she is 15 years of age.
(ii) The victim in her statement under Section 164 Cr.P.C. has stated that she is about 14-15 years of age.
(iii). Medico-legal examination (not the age determination test) records that the victim is 15 years of age.
(iv). The medical report drawn up to determine the age of the victim opines that she is about 15 years of age.
Two submissions are made in regard to the aforesaid medical report. Firstly, the range of error in determining the age is about two years and the same should be read in favour of the applicant at this stage. Secondly, the relevant scientific parameters as per latest medical protocol which would establish the majority of the victim has been excluded from consideration in the medical report. The medical report is flawed. In fact the victim is a major.
4. The applicant has been falsely nominated in the present case on account of a village rivalry over payment of his dues for sending up tent in the village festival.
5. The criminal proceedings are being leveraged to settle the dispute on the terms of the first informant.
6. No allegation of commission of rape has been made in the F.I.R.
7. The doctor who has examined the victim has negated the possibility of rape by the applicant with her.
8. Prosecution evidence does not connect the applicant with the offence.
9. The applicant is a law abiding citizen who cooperated with the police investigations and had joined the trial.
10. The status report sent by the learned trial court records that the prosecution proposes to examine 14 witnesses to bring home the charges. Till date only three prosecution witnesses have been examined.
11. The trial is moving at a snail's pace and is not likely to conclude anytime in the near future. The applicant is not responsible for the delay in the trial.
12. Inordinate delay in concluding trial had has led to virtually an indefinite imprisonment of the applicant without there being any credible evidence to implicate him in the offence and violates the rights of the applicant to speedy trial.
13. The applicant does not have any criminal history apart from this case.
14. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.
In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant- Govinda be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence or influence any witness during the trial.
(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
Order Date :- 3.8.2023
Faridul
