Allahabad High Court
Irshad vs State Of Up And 3 Others on 2 July, 2024
Author: Krishan Pahal
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:107099
Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17424 of 2024
Applicant :- Irshad
Opposite Party :- State Of Up And 3 Others
Counsel for Applicant :- Mukul Yadav
Counsel for Opposite Party :- G.A.,Kamal Kaushal Upadhyay
Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Heard Sri Mukul Yadav, learned counsel for the applicant and Sri Durvijay Singh, Advocate holding brief of Sri Kamal Kaushal Upadhyay, learned counsel for the informant as well as Sri Rajendra Prasad Singh, learned A.G.A. for the State and perused the record.
3. Applicant seeks bail in Case Crime No.1325 of 2023, under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, Police Station- Quarsi, District- Aligarh, during the pendency of trial.
4. As per prosecution story, some unknown person is stated to have enticed away the minor sister of the informant aged about 14 years on 27.12.2023 at about 12:00 p.m.
5. Learned counsel for the applicant has stated that the applicant is absolutely innocent and has been falsely implicated in the present case. The FIR is delayed by about thirteen hours and there is no explanation of the said delay caused. Learned counsel has stated that age of the victim has wrongly been mentioned in the FIR, although she by her physical appearance seems to be major. As per the ossification test report, age of the victim has come out to be 16-17 years. Learned counsel has stated that a leverage of two years may be granted to the applicant on the upper side and has placed much reliance on the judgments of the Supreme Court passed in Jaya Mala vs. State of J & K, (1982) 2 SCC 538 and Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), (2011) 10 SCC 192, whereby it has been opined that the radiologist cannot predict the correct date of birth rather there is a long margin of 1 to 2 years on either side.
6. Learned counsel for the applicant has further stated that there are ample contradictions in the statement of the victim recorded under Section 164 Cr.P.C. and the recovery memo as she has stated that the applicant was arrested by the police at the behest of her parents and later on she was procured by calling her sister. It is further stated that the victim has stated that she was taken to railway station and from thereon she was taken to Kasganj where she remained with the applicant for a substantial period of time. Had it been so, she would have been raised alarm during the said sojourn and stay. The applicant is entitled for bail on this ground.
7. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no criminal history of the applicant. The applicant is languishing in jail since 29.12.2023. In case, the applicant is released on bail, he will not misuse the liberty of bail.
8. Per contra, learned counsel for the informant and learned A.G.A. have vehemently opposed the bail application on the ground that as per the FIR the victim is aged about 14 years, as such she is minor and below the age of consent. Therefore, the applicant is not entitled for bail.
9. The well-known principle of "Presumption of Innocence Unless Proven Guilty," gives rise to the concept of bail as a rule and imprisonment as an exception. A person's right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because he or she is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one's life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. The said principle has been reiterated by the Supreme Court in Satender Kumar Antil vs. Central Bureau of Investigation and another reported in 2022 SCC OnLine SC 825. Learned AGA has not shown any exceptional circumstances which would warrant denial of bail to the applicant.
10. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State.
11. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, taking into consideration the medical age of the victim and the judgments of the Supreme Court passed in Jaya Mala (supra) and Mohd. Imran Khan (supra), 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.
12. Let the applicant- Irshad involved in aforementioned case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
(i) The applicant will not tamper with the evidence during the trial.
(ii). The applicant will not pressurize/ intimidate the prosecution witness.
(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The applicant shall not commit an offence similar to the offence of which he is accused, or suspected of the commission of which he is suspected.
(v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
13. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
14. 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 :- 2.7.2024
Vikas
(Justice Krishan Pahal)
