Deepak vs State Of U.P. And 3 Others
2025 Latest Caselaw 5172 ALL

Allahabad High Court

Deepak vs State Of U.P. And 3 Others on 18 February, 2025

Author: Samit Gopal

Bench: Samit Gopal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:23295
 
Court No. - 78
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9918 of 2024
 

 
Applicant :- Deepak
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Kuldeep Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.
 

1. List revised.

2. Heard Sri Kuldeep Kumar, learned counsel for the applicant, Sri V.D. Ojha, learned AGA for the State and perused the material on record.

3. Notice was issued to the opposite party no. 2/first informant vide order dated 21.8.2024. Office vide its report dated 03.10.2024 reported that notice has been served personally on the opposite party no. 2 as per the report of C.J.M. concerned which is dated 02.09.2024. Despite service no one appears on his behalf even in the revised list. Service of notice is thus sufficient.

4. This is the second bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Deepak, seeking enlargement on bail during trial in connection with Case Crime No. 635 of 2021, under Section(s) 363, 376(3) I.P.C. and 3/4(2) The Protection of Children from Sexual Offences Act, 2012 (S.T. No. 663 of 2022) registered at P.S. Anoopshahar, District Bulandshahr.

5. The first bail application of the applicant was rejected by this Court vide order dated 21.11.2023 passed in Criminal Misc. Bail Application No. 18572 of 2022.

6. Learned counsel for the applicant submitted that trial in the matter has started in which the victim was examined as P.W.-2 who has totally disowned the prosecution version and has stated that she does not know the accused/applicant Deepak and co-accused Akash present in the court. She further stated that Deepak did not allure her nor entice her away and did not commit rape upon her and as such she was declared hostile by the trial court, copy of the said statement of the victim has been placed before the Court which is at page- 71 to 72 of the paper book. It is submitted that looking to the said facts implication of the applicant in the present case is false. It is submitted that the applicant has no other criminal antecedents as stated in para-18 of the affidavit and he is in jail since 05.12.2021.

7. Per contra, learned State counsel opposed the prayer for bail but could not dispute the arguments as aforesaid by learned counsel for the applicant.

8. After having heard learned counsels for the parties and perusing the record, it is evident that this is the second bail. The first bail application of the applicant was rejected by this Court vide order dated 21.11.2023, which reads as under:-

"1. Heard Sri Hemant Sharma, learned counsel for the applicant, Sri Rewti Raman Patel, learned counsel for the first informant and Sri Bade Lal Bind, learned counsel for the State and perused the material on record.

2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Deepak, seeking enlargement on bail during trial in connection with Case Crime No. 635 of 2021, under Section 363, 376 I.P.C. and 3/4 POCSO Act, Police Station Anoop Shahr, District Bulandshahr.

3. The first information report of the present matter was lodged on 11.11.2021 by Gambhir Singh against an unknown person alleging therein that on 11.11.2021 his daughter went to the school at about 8 a.m. and in the lunch hours stating that she is unwell and wants to got home came out. She did not reach home. She was having a mobile phone and used to talk to someone after which the mobile phone was taken from her and switched off. She was not having any other phone.

4. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant is not named in the first information report. It is further argued that subsequently the victim was recovered on 04.12.2021 after which she gave her statement recorded under Section 161 Cr.P.C. and stated of going with the applicant and living with him as his wife. It is argued that subsequently in the statement of the victim recorded under Section 164 Cr.P.C. she states of the applicant committing rape upon her. It is argued that the victim is a consenting party. The medical examination does not show any force being exerted to her as the doctor did not find any injury either internally or externally. The applicant has no criminal history as stated in para 19 and is in jail since 05.12.2021.

5. Per contra, learned counsel for the first informant and learned counsel for the State have vehemently opposed the prayer for bail and argued that the date of birth of the victim is 01.01.2006 and as such on the date of incident which is 11.11.2021 she was aged about 15 years & 10 months and as such was a minor. It is argued that the applicant is named in statements of the victim recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. He is stated to have sexually assaulted her. Since the victim was a minor her consent cannot be looked at this stage.

6. After having heard learned counsel for the parties and perusing the record, it is evident that the applicant is named in the statements of the victim recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. The victim is a minor as per the school records. The consent of a minor is of no worth. No ground for bail is made out.

7. Looking to the facts and circumstances of the case, this Court does not find it a fit case for bail, hence, the bail application is rejected."

9. The victim was produced before the trial court as P.W.-2 who has totally disowned the prosecution case and has been declared hostile by the trial court. In view of the same, this Court is of the view that the applicant may be enlarged on bail.

10. Let the applicant Deepak, 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant shall file an undertaking to the effect that he 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.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his 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, in accordance with law, under section 174-A I.P.C.

(V) 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

11. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

12. However, it is directed that launching of prosecution against the first informant/victim/injured be proceeded in view of para 11 of the judgment in the case of "Aman Vs. State of U.P. and 3 others" : Criminal Misc. Bail Application No. 41458 of 2023 dated 02.02.2024 which reads as under:

"11. ??? ???????? ?? ?????? ???? ?? ?? ??? ??????? ?? ???? ?????? ?? ?? ????? ?? ???? ??? ??, ?? ???? ????? ?? ??? ???? ??? ?? ??????? ??????? ???????? ??? ?? ???? ?? ?? ??????? ???? ?????? ??? ?????? ???? ??? ??, ?? ???? ??????? ?? ??????? ?? ????????? ?? ???? ?? ???? ?? ?? ????? ??????? ??????? ???????? ??? ?????????? ?? ??????? ?? ??? ?? ??? ??????? ????????? ??? ???? ???? ?? ??, ??????? ?? ???? ?? ?? ?????? ?? ??? ??? ????? ???? ?????? ???? ??? ??? ??? ?? ??????? ??????? ???????? ??????? ??? ???? ???? ?? ??????? ??????? ??????"

13. The bail application is allowed.

(Samit Gopal,J.)

Order Date :- 18.2.2025

Naresh