Ajay Tiwari vs State Of U.P. And 3 Others
2025 Latest Caselaw 6016 ALL

Allahabad High Court

Ajay Tiwari vs State Of U.P. And 3 Others on 11 March, 2025

Author: Krishan Pahal

Bench: Krishan Pahal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:36088
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39991 of 2024
 

 
Applicant :- Ajay Tiwari
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Om Prakash Yadav,Sanjay Dwivedi,Suman Kumar Yadav
 
Counsel for Opposite Party :- G.A.,Ram M. Kaushik
 

 
Hon'ble Krishan Pahal,J.
 

1. List has been revised.

2. Counter affidavits filed by learned A.G.A. and learned counsel for the informant are taken on record. Learned counsel for the applicant does not propose to file rejoinder affidavit.

3. Heard Sri Dr. Suman Kumar Yadav, learned counsel for the applicant and Sri Ram M. Kaushik, learned counsel for the informant as well as Sri R.P. Patel, learned State Law Officer for the State and perused the record.

4. Applicant seeks bail in Case Crime No.115 of 2024, under Sections 70(2), 333, 308(2), 351(3) B.N.S., Section 5(g)(L)/6 POCSO Act and Section 67 of I.T. Act, Police Station- Jigna, District- Mirzapur, during the pendency of trial.

PROSECUTION STORY:

5. The applicant is stated to have raped the victim alongwith co-accused person about three years before the last incident by administering her certain medicines. The said offence of rape was being committed by the applicant several times. An indecent video of the victim is stated to have been recorded by co-accused person Rinku. The applicant and co-accused person Rinku had threatened her to make it viral on social media, as such, the FIR was instituted on 15.8.2024.

ARGUMENTS ON BEHALF OF APPLICANT:

6. The applicant is absolutely innocent and has been falsely implicated in the present case.

7. The allegations are per se false. The applicant is a physically handicapped person and incapacitated to commit the said offence. The disability certificate of the applicant is filed with the supplementary affidavit, by which he is stated to have been found 60% disable.

8. The allegations are that the applicant and co-accused person had again raped her about twenty days before the last incident by taking her to the roof through the stairs. It is not possible for the applicant to climb the stairs that too with the victim, as such, the allegations are per se false.

9. There is no medical corroboration of the incident. The victim by her looks seems to be major and as per the ossification test report also her age has come out to be between 18-19 years.

10. 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.

11. There is no criminal history of the applicant. The applicant is languishing in jail since 16.8.2024 The applicant is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail.

ARGUMENTS ON BEHALF OF STATE/OPPOSITE PARTY:

12. The bail application has been opposed on the ground that applicant was hand in glove with the co-accused person. The applicant is a hale and hearty person which is but evident from the supplementary affidavit filed by learned counsel for the informant, whereby the applicant is seen moving around on his limbs as he has already used the Jaipur Foot. He seems to be normal in the said photographs, as such, it was very much possible for the applicant to commit the said crime.

13. Section 29 of POCSO Act raises the presumption of offence committed under the relevant provisions of POCSO Act. Herein relevant Section 5(g)(L)/6 POCSO Act has been levelled against the applicant regarding which the applicant has to rebut presumption and he is unable to do so. As such, the presumption U/s 29 of POCSO Act shall lie against the applicant.

14. As per the medical report, the hymen of the victim was found ruptured, as such, it is possible that the same would have occurred due to the offence committed by the applicant and co-accused person.

15. It is true that applicant has no criminal history, but the case law of the Supreme Court passed in Jarnail Singh vs. State of Haryana (2013) 7 SCC 263, whereby as per paragraphs 22 and 23 the school certificate shall have precedence over the ossification test report, as such, the applicant is not entitled for bail.

16. Much reliance has been placed by learned counsel for the informant on para-10 of the judgment of this Court passed in Abhishek Singh vs. State of UP, 2024 SCC OnLine All 4788 as the applicant has made viral the said indecent video of the victim.

17. In rebuttal, it has been argued by learned counsel for the applicant that the said judgment of the Supreme Court passed in Jarnail Singh (supra) has no application to the case of the applicant as the said school certificate of the victim is not of High School rather it is a certificate issued by the Principal, whereby it is mentioned that the victim was admitted on 1.4.2020 and her date of birth is 1.1.2010. The said document has no relevance as being hit by Section 94 of Juvenile Justice (Care and Protection of Children) Act.

18. Learned counsel for the applicant has also placed much reliance on the judgment of the Supreme Court passed in P. Yuvaprakash vs State Rep. by Inspector of Police, AIR 2023 SC 3525, whereby the Supreme Court has observed that in the absence of records relating to the birth of the victim, no other documents except the Matriculation or equivalent certificate from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat can be relied upon to ascertain the age of the victim. As such, the applicant is entitled for bail.

19. Learned counsel for the applicant has further argued that the said video of the victim has not been made viral by the applicant and the said allegations have been made against co-accused person.

CONCLUSION:

20. In light of the judgement of the Supreme Court passed in Niranjan Singh and another vs Prabhakar Rajaram Kharote and others AIR 1980 SC 785, this Court has avoided detailed examination of the evidence and elaborate documentation of the merits of the case as no party should have the impression that his case has been prejudiced. A prima facie satisfaction of case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.

21. 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.

22. A person's right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because the person 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 recapitulated by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and Ors., 2022 INSC 690.

23. Reiterating the aforesaid view the Supreme Court in the case of Manish Sisodia Vs. Directorate of Enforcement 2024 INSC 595 has again emphasised that the very well-settled principle of law that bail is not to be withheld as a punishment is not to be forgotten. It is high time that the Courts should recognize the principle that ?bail is a rule and jail is an exception?.

24. Learned State Law Officer could not bring forth any exceptional circumstances which would warrant denial of bail to the applicant.

25. 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 State Law Officer.

26. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, taking into consideration the delay in institution of FIR coupled by the fact that the age of the victim has come out to be between 18-19 years, as per ossification test report, and the settled law of the Supreme Court passed in P. Yuvaprakash (supra), 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.

27. Let the applicant- Ajay Tiwari 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 shall not tamper with evidence.

(ii) 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./351 B.N.S.S. 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.

28. 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.

29. 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 :- 11.3.2025

Vikas

(Justice Krishan Pahal)