Ankit vs State Of U.P.And 3 Others
2023 Latest Caselaw 14974 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:103661
 
Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10972 of 2023
 

 
Applicant :- Ankit
 
Opposite Party :- State Of U.P.And 3 Others
 
Counsel for Applicant :- Dheeraj Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

This Court has passed following order on 08.05.2023 :-

"This application was filed on 28.2.2023.

Sri Chandan Agarwal, learned A.G.A.-I submits that he has received a report from Police Station- Sector 24 Noida, Commissionerate Gautam Budh Nagar that information of this bail application has been given to the informant (mother of victim), but there is no date of service of notice. It appears that there is no covering letter from the aforesaid police station.

Service of notice is essential/mandatory requirement for consideration of bail application specially when there is a case of rape of a minor victim.

Above referred facts indicate that Station House Officer, Sector 24 Noida, Commissionerate Gautam Budh Nagar is not discharging his duties diligently and in a very casual manner has submitted information to this Court.

Commissioner of Police, Commissionerate, Gautam Budh Nagar is directed to look into the matter and depute a Senior Police Official to be present before this Court along with Station House Officer of Police Station Sector 24 Noida, Commissionerate Gautam Budh Nagar to explain as to why subordinates are not diligent towards their duties.

List on 12.5.2023 among top ten cases.

Meanwhile, learned counsel for applicant shall go through the judgment passed by this Court in Criminal Misc. Bail Application No.1777 of 2023, Ajay Diwakar Vs.State of U.P. & Ors, decided on 3.5.2023."

S/Sri Sushil Kumar Ganga Prasad, Assistant Commissioner of Police-II, NOIDA, Amit Kumar, S.H.O., Police Station- Sector 24 and Nishant Malik, Sub-Inspector, Section 24, NOIDA are present before this Court and fairly submit that a mistake has been occurred that proper procedure has not been followed in the process of summoning the service of notice upon informant/victim.

This Court has taken serious note and cautioned them that prima facie it is a case of contempt as there are specific directions in regard to process of service of notice in a judgment passed by coordinate Bench of this Court in Junaid vs. State of U.P. and another, 2021 SCC Online All 463.

However, considering their apology tendered before this Court, this Court is not taking any action against them, therefore, their presence are discharged.

Applicant -- Ankit has approached this Court for bail in Case Crime No. 288 of 2022 under Sections 363, 366, 376(3) I.P.C. and Section 3/4 of POCSO Act, Police Station- Sector-24, NOIDA, District- Gautam Buddh Nagar.

In the present case, initially F.I.R. was lodged by mother of victim against applicant that on 06.08.2022, he has enticed away her daughter, a minor girl, aged about 15 years and committed offence of kidnapping. F.I.R. was lodged on 09.08.2022, however, the girl was traced on 03.11.2022.

Sri Dheeraj Kumar Singh, learned counsel for applicant submits that age of victim is 15 years, however, in her statement recorded under Sections 161 and 164 Cr.P.C., she has stated that she went along with applicant on her own will and later on she got married with him and stayed as husband and wife and made physical relationship also; he further submits that it is a case of consensual relationship, therefore, applicant who is in jail since 05.11.2022 may be granted bail.

Sri Chandan Agrawal, learned A.G.A.-I for State has opposed the bail and submits that victim is a minor girl, aged about 15 years; he refers Section 375 (Sixthly) as well as definition of child in Section 2(d) of POCSO Act that consent of minor girl, if any, is immaterial and since it is a case of victim and applicant that they have got married and stayed as husband and wife and made physical relationship also.

Learned A.G.A.-I further submits that till date statement of victim has not been recorded during trial and since applicant is well acquainted with victim, therefore, there is much likelihood that in case applicant gets bail, he will try to influence the victim; therefore, applicant may not be granted bail.

LAW ON BAIL - A SUMMARY

(A) The basic rule may perhaps be tersely put as bail, not jail.

(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.

(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)

In the present case, victim's age is undisputedly 15 years and that she remained with applicant for some days and according to her statement, she got married with him and lived as husband and wife and made physical relationship also.

There is substance in argument of learned A.G.A.-I that consent of a minor girl, if any, is immaterial as well as that there is high possibility that in case applicant gets bail, he will try to influence her.

In these circumstances, I do not find any ground to grant bail to applicant at this stage.

Accordingly, bail application is rejected.

However, Trial Court shall take all endeavour to record statement of victim expeditiously, preferably within a period of three months from today, if there is no legal impediment and thereafter, applicant will be at liberty to file a fresh bail application before Trial Court.

Order Date :- 12.5.2023

Nirmal Sinha