Allahabad High Court
Shailendra @ Chhotu vs State Of U.P. And 3 Others on 17 August, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:165208
Reserved On:- 07.08.2023
Delivered On:- 17.08.2023
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53987 of 2022
Applicant :- Shailendra @ Chhotu
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Rajeev Tiwari,Abhishek Kumar Srivastava
Counsel for Opposite Party :- G.A.,Ajai Kumar,Manoj Kumar Srivastava
Hon'ble Siddharth, J.
1. Heard Shri Abhishek Kumar Srivastava, learned counsel for the applicant;Shri Manoj Kumar Srivastava,learned counsel for the informant and learned A.G.A.
2. There is allegation in the FIR that on 09.08.2022 at about 9:00 p.m., the daughter of the informant aged about 14 years had gone outside to the house to urinate and was followed by her sister. The applicant was standing near the electric pole. He gagged mouth of his daughter and dragged her in the primary school, and after committing the offence of rape left her. His younger daughter was searching her and when she did not found his elder sister, she came back to the house and informed the family members. After sometime the child victim came to her house and told the entire story.
3. Learned counsel for the applicant submits that it is a case of false implication of the applicant. The medical report of the victim does not shows any commission of sign of rape. The age of the victim as per ossification test report is below 16 years. Therefore, given margin of two years on the higher side, she can be considered to be major aged about 18 years. The applicant is also aged about 18 years. The victim and the applicant were having consensual relationship. The applicant has been falsely implicated in this case. He is in jail since 31.08.2022 and has no criminal history to his credit. Along with supplementary affidavit, the high school marksheet of the applicant has been brought on record which shows his date of birth is 09.06.2004. He has submitted that the applicant was aged about 18 years 2 months and 8 days on the date of incident. This is the first implication of the applicant. Trial has commenced. Before the trial court, four prosecution witnesses have already been examined. Trial will take time to conclude. There is no possibility of threatening of witnesses. He is in jail since 31.05.2022.
4. Counsel for the informant has vehemently opposed the bail application of the applicant and has submitted that the victim was minor at the time of the incident and not even 16 years of age. In case the applicant is enlarged on bail he will threaten the witnesses. It is not the case of consent. Applicant has already been charge-sheeted.
5. After hearing the rival contentions, this Court finds that age of the victim of about 16 years and of applicant about 18 years and this is first implication of the applicant. Witness of fact have already been examined.
6. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
7. Let the applicant, Shailendra @ Chhotu, involved in Case Crime No. 216 of 2022, under Sections- 376 IPC and Section ¾ of Protection of Children from Sexual Offences Act, Police Station- Indergarh, District- Kannauj, be released on bail on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against his under Section 229-A of the Indian Penal Code.
(iv) 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.
(v) 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.
8. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
9. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
10. Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of one year.
11. Registrar (compliance) is directed to communicate this order to the concerned court below within ten days.
Order Date :- 17.08.2023
Rohit
