Allahabad High Court
Alok @ Golu vs State Of U.P And Another on 17 August, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:165273
Court No. - 66
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1203 of 2021
Applicant :- Alok @ Golu
Opposite Party :- State Of U.P And Another
Counsel for Applicant :- Lavkush Kumar Bhatt,Jag Narayan,Jitendra Kumar Mishra,Sushil Kumar
Counsel for Opposite Party :- G.A.,Pravin Kumar
Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the applicant as well as learned AGA. No one appears for the informant despite notice.
2. The accused-applicant seeks bail in Case Crime No.331 of 2019 under sections 363, 366 and 376 IPC and section 3/4 POCSO Act, P.S. Kamalganj, District Farrukhabad.
3. The FIR in question was lodged alleging that the daughter of the informant was missing since 05.12.2019. Subsequently, when the victim was recovered, the statement of the victim was recorded under section 161 Cr.P.C. wherein she stated that on 06.12.2019 she was sleeping in her home and some smell was administered on her owing to which she became unconscious and when she became conscious, she found herself in Delhi. She also made averment with regard to commission of the offence under section 376 IPC. In the statement under section 164 Cr.P.C., she reiterated the said version. As regards the age, there is no material on record except a certificate of the Principal dated 11.12.2019 to demonstrate that the victim was aged about 14 years at the time of incident.
4. The counsel for the applicant argues that there is no conclusive material on record to determine the age of the victim which is not been done and the certificate of the principal is also issued 11.12.2019, which on cross examination could conclusively determine the veracity of the said certificate. He places reliance on the judgment of this court in the case of Monish vs. State of U.P. decided on 09.02.2023 in Criminal Misc. Bail Application No.50905 of 2021 to argue that the determination of age can be conclusively done at the time of trial and the mandate of section 35(2) of the POCSO Act has also not been followed as the trial is still pending and the applicant is in custody since 26.02.2020.
5. In view of the said, he argues that pretrial detention for extending long period is violative of Article 21 of the Constitution of India. He places reliance on the judgment of the Supreme Court in the case of Rabi Prakash vs. State of Odisha decided in Special Leave to Appeal (Crl) No.4169 of 2023 to argue that the law incarceration without trial violates the rights under Article 21 of the Constitution of India. The applicant has no criminal history and is in custody since 26.02.2020.
6. Considering the submissions made at the bar, prima facie there is no conclusive material to conclude or record any finding with regard to age which shall be determined during the process of trial and the mandate of section 35(2) of the POCSO Act has clearly been violated coupled with the fact that the prolonged incarceration of the applicant has also been resulted in violation of the rights of the applicant under Article 21 of the Constitution of India and the applicant has no criminal history and there being nothing on record to demonstrate that the applicant, if enlarged on bail, can adversely affect the trial, the applicant is entitled for the bail. Thus, the bail application is allowed.
7. Let the applicant Alok @ Golu be released on bail in aforesaid first information report number subject to his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned with the following conditions:
(a) The applicant shall execute a bond to undertake to attend the hearings;
(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and
(c) 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.
Order Date :- 17.8.2023
VNP/-
