Allahabad High Court
Azad Bhartiya vs State Of U.P. on 31 October, 2023
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:208167
Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44698 of 2023
Applicant :- Azad Bhartiya
Opposite Party :- State of U.P.
Counsel for Applicant :- Mohd. Mobin Ansari
Counsel for Opposite Party :- G.A.
Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Heard Sri Mohd. Akbar Shah Alam Khan, Advocate holding brief of Sri Mohd. Mobin Ansari, learned counsel for the applicant, Sri Ashutosh Srivastava, learned A.G.A. for the State and perused the material placed on record.
3. Applicant seeks bail in Case Crime No.212 of 2022, under Sections 363, 366 I.P.C., Police Station Bara, District Allahabad, during the pendency of trial.
4. As per prosecution case, the applicant is stated to have enticed away the minor daughter of the informant aged about 16 years on 4.11.2022 when she had gone to school. The informant got the knowledge that it was the applicant who was instrumental in the said act on 7.11.2022. The FIR was instituted on 12.11.2022.
5. Learned counsel for the applicant has argued that the FIR is delayed by about eight days and as per the information also it is delayed by five days and there is no explanation of the said delay caused. Learned counsel has further stated that as per the ossification test report, the age of the victim is 19 years. As per the school certificate, the date of birth of the victim is 01.01.2006, whereby she is above sixteen years of age.
6. Learned counsel for the applicant has placed much reliance on the judgment of Apex Court in Sushil Kumar vs. Rakesh Kumar, (2003) 8 SCC 673, wherein it has been stated that it is more often in the Indian Society that person shows the age of their wards much below than their actual age. In the case of Brij Mohan Singh vs. Priya Brat Narain Sinha, AIR 1965 SC 282, this Court, inter alia, observed that in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. It is also settled by Apex Court that as per the medical records, a leverage of two years may be granted to the accused person.
7. Learned counsel for the applicant has further stated that the victim has not allayed any allegations against the applicant rather she has stated in her statement recorded under Section 164 Cr.P.C. that she had gone out peeved by the act of her parents and had come back from the house of her maternal aunt after 15 days. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. There is no criminal history of the applicant. The applicant is languishing in jail since 12.12.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.
8. Learned A.G.A. has vehemently opposed the bail application.
9. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
10. Let the applicant- Azad Bhartiya, who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) The applicant shall not tamper with evidence.
(ii) 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 him in accordance with law.
11. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
12. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 31.10.2023/ Vikas
[Krishan Pahal, J.]
