Allahabad High Court
Hakim Singh vs State Of U.P. And 3 Others on 20 September, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:182917
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40890 of 2023
Applicant :- Hakim Singh
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Avinash Kumar Gautam
Counsel for Opposite Party :- G.A.,S.K. Verma
Hon'ble Rajeev Misra,J.
Heard Mr. Avinash Kumar Gautam, the learned counsel for applicant, the learned A.G.A. for State and Mr. S.K. Verma, the learned counsel for first informant.
This application for bail has been filed by applicant Hakim Singh seeking his enlargement on bail in Case Crime No.111 of 2023, under Sections 354, 376 I.P.C. and 3/4 POCSO Act, Police Station- Mandrak, District- Aligarh, during the pendency of trial.
Perused the record.
Record shows that in respect of an incident which is alleged to have occurred on 3.6.2023, a prompt F.I.R. dated 3.6.2023 was lodged by first informant, namely, Usha (mother of the prosecutrix) and was registered as Case Crime No.111 of 2023, under Sections 354, 376 I.P.C. and 3/4 POCSO Act, Police Station- Mandrak, District- Aligarh. In the aforesaid F.I.R, applicant Hakim Singh has been nominated as solitary named accused.
The gravamen of the allegations made in the F.I.R. is to the effect that named accused i.e. applicant herein is alleged to have caught the hand of the prosecutrix.
Learned counsel for the applicant submits that though the applicant is a named as well as charge-sheeted accused, yet he is liable to be enlarged on bail. Referring to the statements of the prosecutrix as recorded under Sections 161/164 Cr.P.C. and her statement before the Doctor, the learned counsel for applicant submits that same are inconsistent and contradictory. The prosecutrix has changed her stand and the prosecution story from the one unfolded in the F.I.R. firstly in her statement recorded under Section 161 Cr.P.C. and then subsequently in her statement recorded under Setion 164 Cr.P.C. It is thus sought to be contended that since the prosecutrix has not remained consistent and categorical qua the prosecution story in her statements recorded under Sections 161/164 Cr.P.C., therefore, when the statements of the proseucrix are taken as a whole then the same do not fall in the category of impeccable evidence. Referring to the judgment of Supreme Court in Phool Singh Vs. State of M.P., (2022) 2 SCC 74, the learned counsel for applicant submits that in view of above prosecution of applicant for commission of an offence under Section 376 I.P.C. can not be maintained. Learned counsel for applicant further submits that present criminal proceeding having been engineered on account of an ulterior motive.
Applicant is in jail since 06.06.2023. As such, he has undergone more than three months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted and therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Moreover, no such circumstance has emerged insisting the custodial arrest of applicant during the course of trial. Even otherwise applicant is a man of clean antecedents having no criminal history to his credit, except the present one. He, therefore, 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.
Per contra, the learned A.G.A. as well as the learned counsel for first informant have opposed the present application for bail. They submit that since the applicant is a named as well as charge-sheeted accused, therefore, he does not deserve any sympathy of this Court. However, they could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel for first informant upon perusal of material brought on record, evidence, nature, and gravity of offence as well as the complicity of applicant and accusation made coupled with the fact that the statement of the proscutrix under Section 164 Cr.P.C. is beyond the basic prosecution case; the occurence has taken place on 3.4.2023 which was witnessed by the brother, mother and father of the prosecutrix who in their statements under Section 161 Cr.P.C. have only stated that applicant is guilty of catching hand of the prosecutrix, the judgment of the Supreme Court in Phool Singh(supra); the period of incarceration undergone by applicant, the police report in terms of Section 173(2) Cr.P.C. has already been submitted and therefore, the entire evidence sought to be relied upon by prosecution against applicant stands crystallized, no such circumstance has been pointed out by the learned A.G.A. insisting the custodial arrest of applicant during he course of , prima-facie there is nothing on record to show that commission of aggravated sexual assault or penetrative sexual assault by the applicant upon the prosecutrix, the clean antecedents of applicant but without making any comment on the merits of the case applicant has made out a case for bail.
Accordingly the bail application is allowed.
Let the applicant Hakim Singh, 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 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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her 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 :- 20.9.2023
Sachin
