Aasif vs State Of U.P. And 3 Others
2023 Latest Caselaw 25291 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:180974
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40701 of 2023
 

 
Applicant :- Aasif
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Anup Swaroop Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Anup Swaroop Srivastava, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for bail has been filed by applicant-Aasif, seeking his enlargement on bail in Case Crime No. 283 of 2023, under Sections 363, 376 IPC and Sections 3/4 POCSO Act, Police Station-Sadar Bazar, District-Saharanpur during the pendency of trial.

4. 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 2 on 17.09.2023. However, in spite of service of notice no one has put in appearance on behalf of first informant-opposite party 2 to oppose this application for bail.

5. Record shows that in respect of an incident, which is alleged to have occurred on 30.06.2023, a prompt FIR dated 30.06.2023 was lodged by first informant-Mohd. Nadeem (father of the prosecutrix) and was registered as Case Crime No. 283 of 2023, under Section 363 IPC, Police Station-Sadar Bazar, District-Saharanpur. In the aforesaid FIR, 4 persons namely - (1) Aasif, (2) Naazim, (3) Chhoti and (4) Rashid have been nominated as named accused.

6. The gravamen of the allegations made in the FIR to the effect that named accused-Aasif i.e. applicant herein is alleged to have enticed away the minor daughter of the first informant and other 3 named accused are alleged to have connived with the main accused in the commission of the crime in question.

7. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The prosecutrix was recovered on 02.07.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C.. Same is on record at page 23 of the paper book. The prosecutrix in her aforesaid statement has not supported the FIR. To the contrary, the prosecutrix has stated that she herself accompanied the applicant inasmuch as, she is in love with the applicant. The prosecutrix has disclosed her age to be 20 years. Thereafter, the prosecutrix was requested for her internal medical examination, which was refused by her. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., copy of which is on record at page 25 of the paper book. The prosecutrix in her aforesaid statement has rejoined her previous statement recorded under Section 161 Cr.P.C. with the rider that the prosecutrix does not wish any criminal prosecution of the applicant as she herself went away with the applicant.

8. During course of investigation, Investigating Officer recovered the school leaving certificate of the prosecutrix, copy of same is on record at page 21 of the paper book. As per the said certificate, the date of birth of the prosecutrix is recorded as 05.07.2006. The occurrence giving rise to the present criminal proceedings is said to have occurred on 30.06.2023. As such, the prosecutrix was aged about 17 years on the date of occurrence. As per the medical opinion, the prosecutrix has been reported to be aged about 20 years. During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have supported the FIR. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant alone is established in the crime in question. He, accordingly, submitted the charge sheet dated 12.09.2023 whereby applicant has been charge sheeted under Sections 363, 376 IPC and Sections 3/4 POSCO Act.

9. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. According to the learned counsel for applicant, as per the medical opinion, the prosecutrix is major inasmuch as, in the opinion of the Doctor, the prosecutrix is aged about 20 years. With reference to the date of birth of the prosecutrix recorded in the school leaving certificate, the learned counsel for applicant contends that the said document relates to Class-4 when the prosecutrix got her admission in the said institution terminated. Referring to the judgment of the Supreme Court in P. Yuvaprakash Vs. State, 2023 SCC OnLine SC 846, he submits that the age of the prosecutrix cannot be determined as per the date of birth recorded in the scholar register/transfer certificate. Moreover, as per the provisions contained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, the date of birth of the prosecutrix as recorded in the transfer certificate cannot be considered to determine the age of the prosecutrix. Apart from above, the prosecutrix in her statement under Section 161 Cr.P.C. has not supported the FIR. As per the aforesaid statement, the prosecutrix is a willing and consenting party. As the prosecutrix is major, therefore, no offence as complained of can be said to have been committed by the applicant.

10. 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 07.07.2023. As such, he has undergone more than 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, up to this stage, no such incriminating circumstance has emerged necessitating 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.

11. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

12. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that as per the medical opinion, the prosecutrix is aged about 20 years, as such, the prosecutrix is major, the age of the prosecutrix determined on the basis of the school leaving certificate cannot be accepted, in view of the provisions contained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, in view of the law laid down by the Apex Court in P. Yuvaprakash (Supra), the age of the prosecutrix cannot be determined with reference to the date of birth recorded in the school leaving certificate/scholar register, the prosecutrix is prima-facie major as per the medical opinion, the prosecutrix in her statements under Sections 161/164 Cr.P.C. has not supported the FIR, to the contrary, the prosecutrix has stated that she is a willing and consenting party, 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. could not point out from the record any such circumstance necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the clean antecedents of the applicant, the period of incarceration undergone, but without making any comments on the merits of the case, applicant has made out a case for bail.

13. Accordingly, the bail application is allowed.

14. Let the applicant-Aasif, 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.

15. 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 :- 19.9.2023

Vinay