Amit vs State Of U.P. And 3 Others
2023 Latest Caselaw 15632 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:108710
 
Court No. - 76
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2030 of 2023
 
Applicant :- Amit
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Paritosh Sukla,Anand Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Sri Sunil Kumar Srivastava, learned A.G.A. submits that information of this bail application was given to the victim on 6.1.2023, but no one has entered appearance.

2. Heard Sri Paritosh Sukla, learned counsel for applicant, Sri Sunil Kumar Srivastava, learned A.G.A. and perused the records.

3. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.709 of 2022, under Sections 363, 376 I.P.C. & 3/4 of POCSO Act, Police Station-Hapur Nagar, District-Hapur after rejection of his Bail Application vide order dated 31.10.2022 passed by learned Additional District and Sessions Judge/Special Judge (POCSO Act), Hapur.

4. In the present case, age of the victim is about 17 years and five months. According to prosecution story F.I.R. was lodged by the brother of victim on 21.8.2022 alleging that present applicant has enticed his sister and kidnapped her from his lawful guardianship.

5. Learned counsel for applicant submits that it appears that victim was recovered on the next day i.e. 22.8.2022 and thereafter she recorded under statements under Sections 161 and 164 Cr.P.C.

6. Learned counsel further submitted that victim in both her statements recorded under Sections 161 and 164 Cr.P.C. has not made any allegations of any physical relationship occurred between the victim and applicant though stayed together for about five days.

7. Learned counsel has placed reliance upon a judgment passed by this Court whereby bunch of cases were decided leading being Criminal Misc. Bail Application No.1777 of 2023 decided on 3.5.2023, Ajay Diwakar Vs. State of U.P. & Ors, that since there is no allegation of rape, as such allegation will remain only under Sections 363 I.P.C. and 3/4 POCSO Act and even no offence can be made out under Section 3/4 POCSO Act i.e. penetration of sexual assault.

8. Learned counsel for applicant lastly submitted that applicant is languishing in jail since 26.8.2022, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.

9. Learned A.G.A. has opposed the bail application, but has not been able to refute the aforesaid submissions of learned counsel for applicant.

10.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 not 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)

11. This Court has framed following issues in Ajay Diwakar (Supra):

"Whether material collected during investigation such as further/ subsequent / Mazid Bayan or a statement given by a victim (a minor girl) before Child Welfare Committee or that victim has stayed/ lived as wife and husband with accused, would be sufficient evidence for Investigating Officer to take a different or contrary view of statements of victim recorded under Sections 161 and 164 Cr.P.C., wherein she has either denied or does not refer allegation of physical relationship with accused with or without her consent?"

12 Aforesaid question was answered in paragraph 25 of Ajay Diwakar (Supra) which is mentioned hereinafter:

"25. Considering above referred submissions of rival parties, Amicus Curiae and above discussion on facts and law the question formulated above is answered as follows:

(i) An Investigating Officer is under obligation to conduct fair investigation which is an equal right of an accused as well as of victim and for that Investigating Officer has to follow procedure prescribed under the Code as well as Police Manual/ Regulation or procedure prescribed under any Special Act.

(ii) Investigating Officer has liberty to record statement of witnesses more than one time also. Mazid Bayan/ further statement can be recorded to unearth the truth and Investigating Officer has liberty to carry out investigation on its own way but in a legally permissible way till final report/ charge sheet is filed before Court concerned or under "further investigation".

(iii) Investigating Officer cannot record further statement/ Mazid Bayan of victim only for the purpose of clarification or to dilute any statement of victim recorded under Section 164 of Code with only object to make the accused culpable of an offence. [See, Dharmendra alias Patra (supra)]

(iv) Child Welfare Committee is under obligation to provide legal as well as psychological counseling to victim and during this process she may give statement before Child Welfare Committee, however, it would not be considered to be a statement recorded under Section 161 of Code being not recorded by a Police Officer investigating the case. Therefore, any statement before Child Welfare Committee cannot be a sole ground to dilute or to take a different view of statement given by victim before Magistrate.

(v) Medical evidence may be a factor to take a contrary view to the statement of victim recorded under Sections 161 and 164 of Code by Investigating Officer, however, Investigating Officer has to record specific reasons in final report/ charge sheet for such opinion/ view.

(vi) If there is a statement of victim that either they have solemnized marriage or stayed as husband and wife, then there will be a presumption that during stay they have physical relationship except where victim has specifically denied any physical relationship and since consent of minor victim is immaterial, therefore, offence of rape can be made out.

(vii) Above factors may be taken into consideration while hearing a bail application. "

13. From the facts referred above, it transpires that victim is aged about 17 years and few months and was enticed away and kidnapped from lawful guardianship of his brother. However, on the basis of statement of the victim recorded under Sections 161 and 164 Cr.P.C., prima-facie there is no allegation of offence of rape or of penetrative sexual assault, therefore, in the light of above referred judgment and taking note of age of the victim as well as evidence in regard to offence of rape and penetrative sexual assault, therefore, applicant who is in jail since 26.8.2022 has made out a case of bail.

14. Let the applicant-Amit, be released on bail in the aforesaid case crime number on 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant shall file an undertaking to the effect that he 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.

(iii) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., 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, in accordance with law, under section 174-A I.P.C.

(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of the applicant, if there is no other legal impediment.

(v) Applicant has to appear on each and every date before learned Trial Court and any application for exemption of his appearance on vague ground could be a ground for cancellation of bail by learned Trial Court without even issuing notice.

15. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

16. The bail application is allowed.

17. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.

18. In order to remove any apprehension that applicant may influence the victim, it is directed that for a period of three months applicant will not enter within the boundaries of district-Hapur except for the purpose of present case or with prior permission of Trial Court, meanwhile learned Trial Court is directed to take all endeavour to record the statement of the victim if there is no legal impediment.

Order Date:-18.5.2023-SB