Manoj Kumar vs State Of U.P. And 3 Others
2023 Latest Caselaw 35181 ALL

Allahabad High Court

Manoj Kumar vs State Of U.P. And 3 Others on 15 December, 2023

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:238099
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18931 of 2023
 

 
Applicant :- Manoj Kumar
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Rachna Tiwari,Shashi Dhar Goswami
 
Counsel for Opposite Party :- G.A.,Anil Kumar,Kanchan Chaudhary
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. Kamal Krishna, the learned Senior Advocate assisted by Mr. Shashi Dhar Goswami, the learned counsel for applicant, the learned A.G.A. for State

2. Perused the record.

3. 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-4 on 18.04.2023. However, inspite of service of notice no one has put in appearance on behalf of first informant-opposite party-4 to oppose this application for bail.

4. This repeat application for bail has been filed by applicant-Manoj Kumar seeking his enlargement on bail in Case Crime No. 364 of 2022, under Sections 363, 366, 376, (2)(N), I.P.C. and Section 6 Protection of Children From Sexual Offences Act, Police Station Sumerpur, District Hamirpur during the pendency of trial i.e. Sessions Case No. 915 of 2022 (State Vs. Manoj Kumar), under Sections 363, 366, 376, (2)(N), I.P.C. and Section 6 Protection of Children From Sexual Offences Act, Police Station Sumerpur, District Hamirpur now pending in the Court of Special Judge, Additional Sessions Judge, POCSO Act, Hamirpur.

5. The first bail application of applicant was rejected vide order dated 25.11.2022 passed by this Court in Criminal Misc. Bail Application No. 53389 of 2022 (Manoj Kumar vs. State of U.P. and others) For ready reference, the same is extracted hereinunder:-

"Heard Mr. Ram Sharan Giri, the learned counsel for applicant and the learned A.G.A. for State.

This application for bail has been filed applicant Manoj Kumar seeking his enlargement on bail in Case Crime No. 364 of 2022, under sections 363, 366, 376 (2)(N) IPC, and 6 POCSO Act Police Station- Sumerpur, District Hamirpur during the pendency of trial.

Perused the record.

Record shows that in respect of an incident which is alleged to have occurred on 24.8.2022 a belated F.I.R. dated 30.8.2022 was lodged by first informant Rajendra Prasad, which was registered as Case Crime No. 364 of 2022, under sections 363, 366, 376 (2)(N) IPC, and Section 6 POCSO Act Police Station- Sumerpur, District Hamirpur. In the aforesaid F.I.R. applicant Manoj Kumar has been nominated as solitary named accused.

The gravamen of the allegations made in the F.I.R. is to the effect that on 24.8.2022 named accused Manoj Kumar enticed away the minor daughter of first informant, who is a student of Class-XII.

After lodging of aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He first recorded the statement of first informant who has supported the prosecution story as unfolded in the F.I.R. The prosecutrix was recovered on 9.9.2022. Thereafter the statement of prosecutrix was recorded under section 161 Cr.P.C. The prosecutrix in her aforesaid statement has not supported the F.I.R. To the contrary she has stated that she herself accompanied the applicant. The prosecutrix has further stated that she went to different places in the company of applicant. Prosecutrix was thereafter asked for her medical examination. However, same was denied by her. Ultimately statement of prosecutrix was recorded under section 164 Cr.P.C wherein she has rejoined her earlier statement under section 161 Cr.PC. It is further stated by prosecutrix that she and applicant were living together as husband and wife. Physical relation was maintained by applicant with her on her consent. During course of investigation, Investigating Officer recovered High School certificate of the prosecutrix wherein her date of birth is recorded as 20.12.2006. Occurrence giving rise to present criminal proceedings occurred on 30.8.2022. As such, on the date of occurrence, the prosecutrix was aged about 15 years, 7 months and 24 days.

During course of investigation, Investigating Officer examined other witnesses under section 161 Cr.P.C who have supported the F.I.R.. On the basis of above and other material collected by him during course of investigation, Investigating Officer came to the conclusion that complicity of named accused is established in the crime in question. Accordingly, Investigating Officer submitted the charge sheet dated 18.10.2022, whereby applicant has been charge-sheeted under sections 363, 366, 376 (2)(N) IPC, and 6 POCSO Act.

Learned counsel for applicant contends that though applicant is a named as well as charge-sheet accused but he is innocent. There is no medical evidence to support the allegations made in F.I.R. In the absence of medical evidence supporting the charge-sheet, no conviction of applicant is possible for offence under section 376 (2)(N) IPC and Section 6 of POCSO Act. Referring to the statements of the prosecutrix recorded under sections 161/164 Cr.P.C, learned counsel for applicant submits that the prosecutrix herself came to applicant and accompanied him to different places. Therefore, no offence under section 363, 366 IPC can be said to have been committed by applicant. With regard to an offence under Section 6 POCSO Act. Learned counsel for applicant has then invited attention of Court to the statement of prosecutrix recorded under section 164 Cr.P.C. and on basis thereof he submits that prosecutrix is a willing and consenting party. No deliberate or forceful Act was committed by applicant to dislodge her modesty. As such no offence under section 6 POCSO Act is made out against applicant.

It is next contended that 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 9.9.2021. As such, he has undergone more than two months of incarceration. In case applicant is enlarged on bail he shall not misuse the liberty of bail and shall co-operate with the trial.

Per contra, the learned A.G.A has opposed this application. Referring to the high school certificate of the prosecutrix which is part of case diary, he submits that prosecutrix was aged about 15 years, seven months and 24 days on the date of occurrence. As such, prosecutrix was below 16 years of age. Inviting the attention of Court to the judgement of Supreme Court in X(Minor) Vs/ State of Jharkhand and Anr., 2022 Live Law (SC) 194 he submits that in view of above, consent of minor is highly irrelevant. Reference is also made to the provisions contained in POCSO Act. On the cumulative strength of above it is vehemently urged that no indulgence be granted by this Court in favour of applicant.

When confronted with above, learned counsel for applicant could not over come the same.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, as well as complicity of applicant, accusation made coupled with the fact that prosecutrix was aged about 15 years and 7 months on the date of occurrence, prima facie her consent is immaterial, the judgement of the Supreme Court as noted above, but without making any comment on the merits of the case, this Court does not find good ground to enlarge the applicant on bail.

As a result present application fails and is liable to be rejected.

It is accordingly rejected."

6. Learned Senior Counsel for applicant contends that subsequent to the order dated 25.11.2022, trial of the applicant commenced before court below by way of Sessions Case No. 915 of 2022 (State Vs. Manoj Kumar). Prosecutrix deposed before court below as PW-2, whereas, the first informant has deposed before court below as PW-1. However, the prosectrix in her deposition before court below has not supported the F.I.R. On the above conspectus, he therefore, contends that since the prosecutrix in her deposition before court below has herself not supported the F.I.R. therefore, no useful purpose shall be served in prolonging the custodial arrest of applicant during the pendency of trial. Furthermore, once the statement of the prosecutrix has been recorded, therefore, now it cannot be said that in case the applicant is enlarged on bail, he shall either terrorize the witnesses or shall hamper the course of trial. On the above premise, he therefore, submits that applicant is liable to be enlarged on bail.

7. 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 09.09.2022. As such, he has undergone 1 year and 2 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, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of 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.

8. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The prosecutrix is a young girl aged about 16 years of age whose modesty has been deliberately dislodged by the applicant. The first informant i.e. father of the prosecutrix has fully supported the F.I.R. in his deposition before court below. It is thus urged that 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 Senior Counsel for applicant in support of the present application for bail with reference to the record at this stage.

9. Having heard, the learned Senior Counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, complicity of accused, gravity and nature of offence and accusation made coupled with the fact that the prosecutrix in her statement before court below as PW-2 has not supported the F.I.R., consequently, no useful purpose shall be served in prolonging the custodial arrest of applicant, since, the statements of the prosecutrix has already been recorded, therefore, in case, applicant is enlarged on bail, it cannot be said that the applicant shall either terrorize the witnesses or shall hamper the course of trial, the clean antecedents of applicant, the period of incarceration undergone and inspite of the fact that the charge sheet has been submitted against applicant and, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, 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 judgment of Supreme Court in Sumit Subhaschandra Gangwal & Anr. Vs. The State of Maharastra & Anr. 2023 Live Law (SC) 373 (paragraph 5), therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, 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- Manoj Kumar be released on bail in 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 :- 15.12.2023

Imtiyaz