Allahabad High Court

Sahil vs State Of U.P. And 3 Others on 21 May, 2024

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:91319
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6595 of 2023
 

 
Applicant :- Sahil
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Abhishek Ranjan Yadav,Chandra Prakash
 
Counsel for Opposite Party :- G.A.,Piyush Dubey
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. This application was filed on 3.1.2023 and it was taken up for hearing earlier on seven dates. However, it was adjourned either on the request of learned counsel for applicant or due to his non-presence.

2. Heard Sri R.P.S. Chauhan, Advocate holding brief of Sri Chandra Prakash, learned counsel for the applicant, Sri Piyush Dubey, learned counsel for the informant and Sri B.P.Singh, learned A.G.A.

3. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.264 of 2022, under Sections 376 (2) 3 and 452 of I.P.C. 1860 and Section 5 m/6 of POCSO Act, 2012, Police Station-Jagdishpura, District-Agra.

4. Applicant before this Court is father of a friend of a minor girl aged about four years and is facing trial for committing an offence of rape of a minor girl (less than 16 years) wherein minimum sentence is of 20 years which may extend to life imprisonment as well as an offence of 'Aggravated Penetrative Sexual Assault' of a minor girl (below 12 years) wherein also minimum sentence is of 20 years which may extend to imprisonment for life.

5. Learned counsel for applicant submits that according to charge-sheet there are 11 proposed prosecution witnesses and till date not a single witness has been examined.

6. Learned counsel for the applicant refers contents of F.I.R. and statement of victim recorded under Sections 161 and 164 Cr.P.C. that initially case was of only outraging modesty of a minor girl and for the first time victim in her statement recorded under Section 164 Cr.P.C. (recorded after 12 days) under the influence of her parents has made a statement which may fall within the ambit of Aggravated Penetrative Sexual Assault.

7. Learned counsel for the applicant further submits that such improvement is also belied from the statement of alleged eye witness who has narrated the occurrence only to extent of contents mentioned in F.I.R. as well as the statement of victim recorded under Section 161 Cr.P.C.

8. Learned counsel for the applicant also submits that incarceration period which is just about two years could be a prolong detention since trial has not commenced till date and it could be a ground to grant bail and that there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial..

9. Learned counsel for the applicant refers a judgment passed by Supreme Court in the case of Vinod Bhandari Vs. State of Madhya Pradesh (2015) 11 SCC 502, (Vyapam Case) wherein considering the special feature of the case, Supreme Court came to the conclusion that speedy trial being right of the accused, period of incarceration which was about one year in this case was considered to be a prolong detention and bail was granted.

10. Learned A.G.A. and learned counsel for informant have opposed the bail application and referred statement of victim recorded under Sections 161 and 164 Cr.P.C. fixing the presence of applicant at the place of occurrence which is supported by eye witness account also. They further submit that at this stage statement of the victim recorded under Section 164 Cr.P.C. could not be put under cloud of doubt and at this stage in case bail is granted to applicant possibility of influencing witnesses still exist as the applicant is acquainted not only to the victim, but also to her family members.

11.I have considered the above mentioned rival submissions in referred factual and legal background and in view of established principle of jurisprudence of bail i.e 'bail is rule and jail is exception' as well as relevant factors for consideration of a bail application such as (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused;(vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; (viii) danger of course, of justice being thwarted by grant of bail etc. and that an order to grant or not to grant bail must assigned reasons (see Deepak Yadav Vs. State of U.P. (2022) 8 SCC 559, Manoj Kumar Khokar Vs. State of Rajasthan and Anr (2022) 3 SCC 501, The State of Jharkhand Vs. Dhananjay Gupta @ Dhananjay Prasad Gupta: Order dated 7.11.2023 in SLP (Crl) No.10810/2023 and Shiv Kumar Vs The State of U.P. and Ors: Order dated 12.9.2023 in Criminal Appeal No.2782 of 2023; Ramayan Singh Vs. The State of U.P. and Anr, 2024 SCC Online SC 563), therefore, I am of considered opinion that present is not a fit case to grant bail to applicant mainly on following reasons:-

(i) Applicant is father of a friend of a minor girl aged about four years and allegedly he has taken advantage of his acquaintance with the victim and committed above referred offence.

(ii) Presence of applicant along with victim in the room is prima-facie supported by the eye witness account, wherein victim was found without clothes.

(iii) Victim has narrated entire occurrence in her statement recorded under Section 164 Cr.P.C. and on basis of such statement, this Court is of considered opinion that it is a case which could fall within the ambit of Section 5 m/6 of POCSO Act, which is punishable with minimum sentence of 20 years, which may extend to life imprisonment.

(iv) Court takes note of argument that improvement made in the statement of victim under Section 164 Cr.P.C. could be considered to be a tutored statement. However, at this stage statement of the victim who is only four years old minor girl recorded before the Magistrate, where she was more comfortable could not be placed under any doubt.

(v) Court also takes note of the judgment passed in Vinod Bhandari (supra). However, as referred above, that case was considered on its special feature, whereas recently Supreme Court in the case of Ajwar Vs. Waseem & Anr, 2024 INSC 438 held that despite trial was proceeded and this Court has granted bail to accused persons but on an appeal before Supreme Court bail was cancelled on the ground that in a case of henious crime ground of bail is required to be considered on the basis of various factors which are enumerated in Vinod Bhandari (supra) also as well as that period of detention may not be considered to be a factor, where there are henious crime, therefore, considering the nature of allegations against the applicant i.e. committing an offence of 'Aggravated Penetration Sexual Assault', age of victim which is four year, victim's statement recorded under Section 164 Cr.P.C. possibility of influencing witnesses in event of conviction, minimum sentence is of 20 years and that statement of victim is still not recorded before learned Trial Court, I do not find that incarceration period of two years would fall under prolong detention and therefore, it is not a case where bail could be granted.

12. At this stage, learned counsel for the applicant submits that statement of victim may be recorded expeditiously.

13. Learned counsel appearing on behalf of informant assures that as soon as summon is issued for appearance of victim she will appear along with his guardian to depose before learned Trial Court and seeks that she may be provided security under Witness Protection Scheme, 2018. The prayer is accepted and for that concerned authority is directed to take required steps.

14. Learned Trial Court is directed to take all endeavour to record the statement of victim within a period of six months from today and applicant will be at liberty to approach this Court or learned Trial Court as advised along with status of trial.

15. Bail application is accordingly rejected.

16. Registrar (Compliance) to take steps.

Order Date :- 21.5.2024