Allahabad High Court
Danveer vs State Of U.P. And 3 Others on 24 August, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:171852
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34779 of 2023
Applicant :- Danveer
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Nagendra Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Ref:- Exemption Application
1. Heard Mr. N.K. Singh, the learned counsel for applicant and the learned A.G.A. for State.
2. The exemption application is allowed.
Ref:- Criminal Misc. Bail Application
1. Heard Mr. N.K. Singh, 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-Danveer, seeking his enlargement on bail in Case Crime No. 167 of 2023, under Sections 363, 366, 376 IPC and Sections 5/6 POCSO Act, Police Station-Soron, District-Kasganj during the pendency of trial.
4. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant-opposite party 2 on 03.08.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party 2 to oppose this application for bail.
5. Record shows that in respect of an incident, which is alleged to have occurred on 30.03.2023, a delayed FIR dated 31.03.2023 was lodged by first informant-Vinod (father of the prosecutrix) and was registered as Case Crime No. 167 of 2023, under Sections 366 IPC, Police Station-Soron, District-Kasganj. In the aforesaid FIR, applicant-Danveer has been nominated as solitary named accused.
6. The gravamen of the allegations made in the FIR to the effect that named accused enticed away the minor daughter of the first informant i.e. the prosecutrix namely - X. The FIR further records that the prosecutrix took away certain gold and silver jewellery along with cash of Rs. 3,00,000/- kept in the house of the first informant.
7. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. As per the High School Certificate of the prosecutrix, her date of birth is 25.01.2006. The occurrence giving rise to present criminal proceedings occurred on 30.03.2023. As such, the prosecutrix was aged about 17 years, 2 months and 5 days on the date of occurrence. It is next contended that during course of investigation, the statement of the prosecutrix were recorded under Sections 161/164 Cr.P.C. However, the prosecutrix in her aforesaid statement has not supported the FIR. To the contrary, she is a willing and consenting party. With reference to the medical opinion, the learned counsel for applicant contends that the Doctor, who conducted internal medical examination of the prosecutrix, did not find any such injury on her body so as to denote commission of sexual assault. He, however, submits that the opinion expressed by the Doctor with regard to the private part of the prosecutrix is as under:-
"old torn hymen"
8. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 10.04.2023. As such, he has undergone more than 4 months of incarceration. 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. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he submits 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.
9. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The prosecutrix is a young girl below 18 years of age as per her High School Mark Sheet. As such, no sympathy be shown by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
10. 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 applicant coupled with the fact that the prosecutrix has not sustained any injury on her body, the statements of the prosecutrix recorded under Section 161/164 Cr.P.C., prima-facie goes to show that she is a willing and consenting party, 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, however, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial, the clean antecedents of applicant, the period of incarceration undergone, the learned A.G.A. could not point out from the record any such circumstance necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), but without making any comments on the merits of the case, applicant has made out a case for bail.
11. Accordingly, the bail application is allowed.
12. Let the applicant-Danveer, 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.
13. 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 :- 24.8.2023
Vinay
