Allahabad High Court
Sanju @ Sanjay Kumar vs State Of U.P. And 3 Others on 21 August, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:168137
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35173 of 2023
Applicant :- Sanju @ Sanjay Kumar
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Chandra Bhushan Yadav,Krishna Pratap Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Chandra Bhushan Yadav, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant-Sanju @ Sanjay Kumar, seeking his enlargement on bail in Case Crime No. 265 of 2023, under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act, Police Station-Bisrakh, District-Gautam Budh Nagar during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 02.04.2023, a prompt FIR dated 02.04.2023 was lodged by first informant-Saukhat Ali (father of the prosecutrix) and was registered as Case Crime No. 265 of 2023, under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act, Police Station-Bisrakh, District-Central Commissionerate Gautam Budh Nagar. In the aforesaid FIR, an unknown person has been arraigned as solitary accused.
5. The gravamen of the allegations made in the FIR to the effect that an unknown person is alleged to have kidnapped the daughter of first informant.
6. Learned counsel for applicant contends that applicant is innocent. Applicant is not named in the FIR but he is a charge sheeted accused inasmuch as, the charge sheet has been submitted against applicant on 04.07.2023. According to the learned counsel for applicant, the prosecutrix in her statements under Sections 161 and 164 Cr.P.C. has not remained consistent. Therefore, when the statements of the prosecutrix as recorded under Section 161 and 164 Cr.P.C. are taken as a whole, They suffer from the vice of contradiction, embellishment and exaggeration. As such, the same are not worthy of reliance. Referring to the judgment of Supreme Court in Phool Singh Vs. State of M.P., (2022) 2 SCC 74, it is contended by the learned counsel for applicant that the prosecution of an accused for an offence of rape or sexual assault can be maintained even in the absence of medical evidence and on the solitary statement of the prosecutrix. However, in such a case, the statement of the prosecutrix should be of impeccable character but when the aforesaid test is applied to the facts of the present case, the satements of the prosecutrix as noted above, do not fall in the category of impeccable evidence inasmuch as, the same are contradictory to each other. As such, no prosecution of the applicant can be maintained on the basis of above.
7. Even otherwise, the prosecutrix in her statement under Section 164 Cr.P.C. has categorically stated that physical relations were maintained in between the applicant and the prosecutrix. As a result, neither there was penetrative sexual assault nor aggravated sexual assault committed by the applicant upon the prosecutrix. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Applicant is in jail since 19.05.2023. As such, he has undergone more than 3 months of incarceration. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. It is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
8. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Applicant is guilty of dislodging the modesty of the prosecutrix, who is a young girl aged about 14 years and 3 months. As per UPT report, the prosecutrix is in family way. On the above premise, the learned A.G.A. submits that no sympathy be shown by this Court in favour of applicant. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
9. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that the prosecutrix in her statement under Section 161/164 Cr.P.C. has not remained consistent, therefore, when the statement of the prosecutrix recorded under Section 161/164 Cr.P.C. are taken as a whole, they cannot be classified as impeccable piece of evidence, the prosecutrix in her statement under Section 164 Cr.P.C. has categorically stated that no physical relation was maintained by the applicant with her meaning thereby her modesty was not dislodged by the applicant, in spite of the fact that the police report in terms of Section 173(2) Cr.P.C. has been submitted and the entire evident sought to be relied upon by the prosecution against applicant stands crystallized, yet the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the clean antecedents of applicant, the period of incarceration undergone,but without making any comments on the merits of the case, applicant has made out a case for bail.
10. Accordingly, the bail application is allowed.
11. Let the applicant-Sanju @ Sanjay Kumar, be released on bail in the aforesaid case crime number 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/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
12. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 21.8.2023
Vinay
