Raees Mohd. Gaddi vs State Of U.P. And 3 Others
2023 Latest Caselaw 25740 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:184285
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39807 of 2023
 

 
Applicant :- Raees Mohd. Gaddi
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Kamal Singh,Ram Charan Lal
 
Counsel for Opposite Party :- G.A.,Manoj Kumar Srivastava
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Kamal Singh, the learned counsel for applicant, the learned A.G.A. for State and Mr. Manoj Kumar Srivastava, the learned counsel representing first informant.

2. Perused the record.

3. This application for bail has been filed by applicant-Rahees Mohd. Gaddi, seeking his enlargement on bail in Case Crime No. 153 of 2023, under Sections 376(2)(n), 376(3), 364, 506 IPC & Sections 4(2), 5L/6 of the POCSO Act, Police Station-Subhash Nagar, District-Bareilly during the pendency of trial.

4. Record shows that an FIR dated 04.05.2023 was lodged by first informant-Smt. Nanhi (mother of the prosecutrix) and was registered as Case Crime No. 153 of 2023, under Sections 376(3), 364, 506 IPC & Section 4 POCSO Act, Police Station-Subhash Nagar, District-Bareilly. In the aforesaid FIR, three persons namely - (1). Rahees Mohd. Gaddi, (2) Bablu Gaddi and (3) Noor Mohd. Gaddi have been nominated as named accused whereas an another person has also been arraigned as accused.

5. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused inasmuch as, the charge sheet has been submitted against applicant and 2 others on 21.06.2023 yet the applicant is liable to be enlarged on bail. He has first invited the attention of the Court to the FIR and on basis thereof, he submits that in the date, time and place column of the FIR, no details have been mentioned It is then contended that the date, time and place has not been specified in the FIR. On the above premise, it is thus urged that the FIR giving rise to present application for bail is highly belated. However, neither in the FIR nor in the statement of the first informant recorded under Section 161 Cr.P.C., copy of which is on record at page 38 of the paper book, there is any explanation regarding the delay in lodging the FIR. According to the learned counsel for appicant since the delay in lodging the FIR has not been explained, the prosecution of the applicant itself cannot be maintained. To buttress his submission, he has relied upon the judgment of the Supreme Court in P. Rajagopal And Ors. Vs. The State of Tamil Nadu, AIR 2019 SC 2866 (paragraph 8). It is then contended that applicant has been charge sheeted under Sections 4(2), 5L/6 of the POCSO Act. The prosecutrix is an illiterate lady and therefore, there is no record of any educational institution wherein the date of birth of the prosecutrix might have recorded. There is no other document on record in consonance with the provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 regarding the date of birth of the prosecutrix. Therefore, out of the necessity the age of the prosecutrix has to be inferred as per the medical opinion. According to the learned counsel for applicant, as per the medical opinion, the prosecutrix is said to be aged about 18 years. Since the prosecutrix is aged about 18 years, she was major and therefore, no prosecution of the applicant under the provisions of the POCSO Act can be maintained. It is further submitted by the learned counsel for applicant that the prosecutrix is a willing and consenting party. The prosecutrix was neither enticed away by the applicant nor she was abducted or kidnapped by the applicant. The prosecutrix is willingly accompanied the applicant. As such, no offence under Section 363/364 IPC is made out against the applicant. The medical opinion on the record does not support the ocular version of the occurrence as emanating from the statements of the prosecutrix recorded under Sections 161/164 Cr.P.C. The Doctor, who examined the prosecutrix, did not find any injury on her body so as to denote the commission of deliberate sexual assault. On the above premise, the learned counsel for applicant submits that applicant is liable to be enlarged on bail.

6. 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 13.05.2023. As such, he has undergone more than 6 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 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.

7. Per contra, the learned A.G.A. and the learned counsel representing first informant have 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 is a young girl aged about 18 years. As per the statements of the prosecutrix, her modesty has been deliberately and forcibly dislodged by the applicant. As such, no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

8. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that there is delay in lodging the FIR, the said delay remains unexplained up to this stage, since the delay in lodging the FIR remain unexplained, the prosecution of the applicant itself cannot be maintained vide judgment of the Supreme Court in P. Rajagopal (Supra), though the applicant has been charged sheeted under the provisions of the POCSO Act but as per the medical opinion, the age of the prosecutrix is said to be 18 years, therefore, prima-facie, the provisions of the POCSO Act are not attracted, there is no other material on record to infer the age of the prosecutrix as per her date of birth recorded in the public record/school record, as per the statements of the prosecutrix recorded under Sections 161/164 Cr.P.C., she is williing and consenting party, prima-facie, the applicant has neither enticed away, abducted or kidnapped the prosecutrix for committing the crime in question, the medical evidence does not support the ocular version of the occurrence as emanating from the statements of the prosecutrix referred to above, the clean antecedents of the applicant, the period of incarceration undergone, 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 in spite of above, 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. and the learned counsel representing first informant 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.

9. Accordingly, the bail application is allowed.

10. Let the applicant-Raees Mohd. Gaddi, 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.

11. 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 :- 21.9.2023

Vinay