Allahabad High Court
Vivek Kumar Ojha vs State Of U.P. And 3 Others on 5 January, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:2326
Court No. - 46
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55023 of 2023
Applicant :- Vivek Kumar Ojha
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Karuna Nand Tiwari,Prem Narayan Singh,Sr. Advocate
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard Sri Anil Srivastava, learned Senior Advocate, assisted by Sri Karuna Nand Tiwari, learned counsel for the applicant and learned A.G.A. for the State.
Despite service of notice on opposite party no.2 has been served no one has turned up to oppose this bail application.
There is allegation in the first information report regarding abduction of minor girl with intent to marry, commission of offence of rape and offence under Section 5/6 of POCSO Act.
Learned Senior Advocate has submitted that the victim in her statement recorded under Section 161 Cr.P.C has not implicated anyone. She had admitted that she had left her school on 02.09.2023 and because of some uneasiness her brain stopped working. She went to Shohratgarh and then went to Siddharth Nagar Railway Station. There she caught train and went to Gorakhpur. At Gorakhpur railway station she met one Kushboo and she went with her to Lucknow. Thereafter she called her brother to Lucknow and came back to Shohratgarh. Learned Senior Advocate has submitted that she left her school on 02.09.2023 but father has given an application at the police station on 12.09.2023 stating that her daughter is missing. She has returned to her house on 14.09.2023. There is no mention in missing report that her brother brought her back to her house. Learned Senior Advocate further submits that victim in her statement recorded under Section 164 Cr.P.C has admitted that she was taken forcibly by co-accused, Sandeep on 02.09.2023 on his bike while she was coming from school. He had earlier committed offence of rape against her. Sandeep purchased a mobile phone for her. Thereafter he blocked her and left her in the company of one, Vivek, the applicant. He has committed offence of rape against her twice. Thereafter applicant sent the victim with Kushbook to Lucknow. She reached Lucknow on 03.09.2023. She called her brother-in-law from mobile phone given by Sandeep. Thereafter her brother took her back from Lucknow to her house. Learned Senior Advocate finally submitted that statements of the victim at different places are different. She has in fact eloped with co-accused, Sandeep and in her statement recorded under Section 161 Cr.P.C., she neither named, Sandeep, nor the applicant. Applicant has been falsely implicated. In fact applicant had gone to Gorakhpur railway station to drop his friend where the victim was roaming. She was hungry and he gave her some money. Therefore his location was found at the Gorakhpur railway station and he was falsely implicated by police. Applicant is in jail since 27.09.2023.
Learned AGA has opposed the prayer for bail but could not dispute the above submissions.
Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials 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.
Let the applicant, Vivek Kumar Ojha, involved in Case Crime No.320 of 2023, under Sections 363, 366, 376 DA I.P.C and under Section 5/6 of POCSO Act, Police Station Shoharatgarh, District- Siddharth Nagar 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 the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code.
(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 5.1.2024
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