Mohd. Imran Anshari vs State Of U.P. And 3 Others
2023 Latest Caselaw 26723 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:189399
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38029 of 2023
 

 
Applicant :- Mohd. Imran Anshari
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Vipin Kumar
 
Counsel for Opposite Party :- G.A.,Aarushi Khare
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Vipin Kumar, the learned counsel for applicant, the learned A.G.A. for State, Mr. Ganesh Shankar, Advocate, holding brief of Mr. Sanjay Srivastava, Advocate, who has put in appearance on behalf of first informant by filing his Vakalatnama in Court today, which is taken on record and Miss Arushi Khare, the learned counsel representing opposite party 2, High Court Legal Services Committee, High Court, Allahabad.

2. Perused the record.

3. This application for bail has been filed by applicant-Mohd. Imran Anshari, seeking his enlargement on bail in Case Crime No. 456 of 2022, under Sections 376, 504 IPC and Section 3/4 POCSO Act, Police Station-Chakeri, District-Kanpur Nagar during the pendency of trial.

4. The first bail application of applicant i.e. Criminal Misc. Bail Application No. 25565 of 2022 (Mohd. Imran Anshari Vs. State of U.P. and 3 Others) was rejected by this Court vide order dated 01.11.2022. For ready reference, the same is reproduced herein under:-

"Short counter affidavit has been filed today by Informant's counsel, the same is taken on record.

Heard learned counsel for the applicant, learned A.G.A and Sri Sanjay Srivastava, learned counsel for opposite party no.4.

The present application under Section 439 Cr.P.C. has been filed seeking bail in FIR No.456/2022 under Sections-376, 506 I.P.C. & Section 3/4 of the POCSO Act, 2012, Police Station-Chakeri, District-Kanpur Nagar.

Along with the short counter affidavit, a copy of High School Certificate-cum-Marksheet of the victim has been annexed wherein her date of birth is mentioned as 26.10.2008. The Court has also perused the Medico-Legal Report wherein her date of birth (as reported) is mentioned as 26.10.2005 which appears to be an error. In any case, the date of birth mentioned in the High School Certificate is significant. As per medico-legal examination, her age is about thirteen years and her hymen has been found to be torn. Also, considering the age of minor, the contention of applicant's counsel that relationship was consensual is meaningless.

Having heard learned counsel for the parties and having perused the material on record, the Court does not find it a fit case for enlargement of the applicant on bail.

Accordingly, the application for bail is rejected."

5. Learned counsel for applicant submits that subsequent to above order dated 01.11.2022, the trial of the applicant commenced before court below by way of Special Case No. 1053 of 2022 (State Vs. Mohd. Imran Ansari). Up to this stage, two prosecution witnesses of fact namely PW-1, Sameer Ansari (first informant) and PW-2 (prosecutrix) have been examined.

6. According to the learned counsel for applicant, the bail application of the applicant was rejected primarily on the ground that as per the date of birth of the prosecutrix mentioned in the High School Certificate, the prosecutrix was aged about 13 years, 6 months and 3 days. However, during course of trial, the defence placed categorical evidence to the effect that in the institution first attended by the prosecutrix, her date of birth has been recorded as 26.10.2005. However, the prosecution, in spite of having been granted sufficient opportunity to explain the same, could not explain as to how, the said date of birth came to be recorded in the institution first attended by the prosecutrix. At this stage, attention of the Court was invited to the judgment of this Court in Vishal Singh @ Pitarsan @ Vishal Kumar Singh Vs. State of U.P. and Another, (2022) ILR 7 All 825, wherein this Court has dealt with the aforesaid issue in detail.

7. On the above premise, he submits that since the prosecution itself has not been able to establish the exact date of birth of the proecutrix, therefore, the applicant is liable to be granted the benefit of doubt at this stage. As per the submission of the learned counsel for applicant, the date of birth of the prosecutrix recorded in the institution first attended by her has been admitted by the two prosecution witnesses examined up to this stage. On the above premise, the learned counsel for applicant submits that the age of the prosecutrix on the date of occurrence shall be 16 years, 6 months and 3 days. In view of above, the rigours of law laid down by the Supreme Court in the case of X (Minor) Vs. The State of Jharkhand and Another 2022 LiveLaw (SC) 194, shall not be attracted.

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 02.05.2022. As such, he has undergone more than 1 year and 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. The trial has already commenced and the statement of first informant and the prosecutrix have already been recorded. He, therefore, contends that in view of above, no such circumstance exists to prolong 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. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The prosecutrix in her statements under Sections 161/164 Cr.P.C. has clearly implicated the applicant in the crime in question. As such, no sympathy be shown by this Court in favour of applicant.

10. When confronted with above, the learned counsel for applicant invited the attention of the Court to the medico legal report of the prosecutrix. On the basis of above, he submits that the Doctor, who medically examined the prosecurix, did not find any signs on her body so as to denote commission of deliberate or forceful sexual assault. The applicant and the prosecutrix are related to each other. The prosecutrix is a consenting party. Present criminal proceedings have been engineered on account of an ulterior motive. False implication of the applicant in the crime in question cannot be ruled out. He, therefore, submits that applicant is liable to be enlarged on bail.

11. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant/opposite party 4 and Miss Arushi Khare, the learned counsel representing opposite party 2, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that two prosecution witnesses of fact who have deposed before court below i.e. the prosecutrix and the first informant have admitted in their cross examination that the date of birth of the prosecutrix is the same date of birth which is recorded in the institution first attended by her i.e. 26.10.2005, as such, the prosecutrix was aged about 16 years, 6 months and 3 days on the date of occurrence, prima-facie, the medical evidence does not support the prosecution story regarding commission of deliberate and forceful sexual assault upon the prosecutrix, since the prosecutrix was above 16 years of age on the date of occurrence, therefore, the maximum sentence that can be awarded is 10 years and not 20 years, in view of above, the rigours of law laid down by the Apex Court in the case of X (Minor) (Supra) are not attracted, the prosecutrix and the applicant are related to each other, in view of above, the prosecutrix appears to be a willing and consenting party, the clean antecedents of applicant, the period of incarceration undergone, considering the age of the prosecutrix, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet the learned A.G.A. and the learned counsel representing first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A., the learned counsel representing first informant and the learned counsel representing opposite party 2 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.

12. Accordingly, the bail application is allowed.

13. Let the applicant-Mohd. Imran Anshari, 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.

14. 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 :- 3.10.2023

Vinay