High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3338 of 2022 Applicant :- Surendra Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Jitendra Singh Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
Legal Reasoning
into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. (B). It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. (C). It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. 8. In the present case, the applicant in her statement recorded under Section 164 Cr.P.C. has specifically stated that she was acquainted with the applicant for the last 5 months and on 24.9.2021 she on her own will left her home and met the applicant near Bareilly and thereafter both of them went to Amrawati at Himachal Pradesh where they got married in a ceremony conducted in a temple and made consensual relationship with each other. She has specifically stated that both loved each other and wanted to stay together. 9. In the case of X (Minor) supra the Supreme Court has stated that in the case of minor girl even her consent for consensual relationship is immaterial. Even the defence of love affair was rejected. 10. In the present case, according to the educational documents of the victim was about 17 and half years old on the date of occurrence, therefore, she is a minor girl under the relevant provisions. However, considering that in the case of X (Minor) supra the age of the victim was about 13 years, whereas in the present case, the age of the victim on the date of occurrence was 17 and half years and also taking note the statement of the victim recorded under Section 164 Cr.P.C. that she was not forced to make any relationship with the applicant, rather it was a consensual relationship and specifically taking note the present age of the victim, a case of bail is made out. 11. Let the applicant Surendra, involved in aforesaid case crime number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (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. 12. 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. 13. The bail application is allowed. 14. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 15.The computer generated copy of such order shall be self attested by the counsel of the party concerned. 16. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. 17. The observations made hereinabove are only for the purpose of adjudicating the present bail application. Order Date:-24.3.2022 SB Digitally signed by SANDEEP BHATTACHARYA Date: 2022.03.25 15:50:17 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
1. Heard Sri. Jitendra Singh, learned counsel for the applicant, Om Prakash, learned A.G.A. and perused the record. 2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.338 of 2021, under Sections 363, 366, 376 of I.P.C. and 3/4 of Protection of Children from Sexual Offences Act, Police Station-Ramchandra Mission, District- Shahjahanpur after rejection of his Bail Application vide order dated 3.1.2022, passed by learned Special Judge, (Pocso Act), Additional Sessions Judge, Court No.8, Shahjahanpur. 3. In the present case, the informant Rajesh Yadav lodged an F.I.R. initially under Sections 363 I.P.C. on 25.9.2021 that his minor daughter aged about 16 years was missing since 24.9.2021. Later on, the victim was recovered and her statement under Section 161 Cr.P.C. was recorded wherein she stated that she stayed about 20 to 21 days with the applicant in the State of Himachal Pradesh. Applicant was acquainted to her for the last three months and the applicant did not make any physical relationship with the victim. The medico legal examination of the victim was conducted wherein no external injury was detected and according to the supplementary legal report on the basis of radiological report, the age of the victim was determined about 18 years. However, the victim in her statement recorded under Section 164 Cr.P.C. mentioned that she called victim to a certain place, then they went to Himachal Pradesh, where they lived as husband and wife and also got married in a ceremony solemnized in a temple and they made physical relationship also. 4. Counsel for the applicant submits that on the basis of averments made in the F.I.R. as well as the statements recorded under Sections 161 and 164 Cr.P.C. of the victim, she lived with the applicant with her own free will and they got married and made physical relationship which was consensual. The age of the victim is about 18 years, therefore, prima-facie no case is made out against the applicant. The applicant is a young boy he has no other reported criminal antecedent and he is languishing in jail since 22.10.2021, 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. 5. Despite informant/victim was informed about the present bail application and this application was adjourned on 25.2.2022 for ensuring their appearance in person or through advocate, till date no one has entered appearance. 6. Learned A.G.A. has vehemently opposed the bail application and submits that the victim is a minor girl and according to the educational documents of the victim (Transfer Certificate), her date of birth is 10.3.2004, therefore, on the date of occurrence (24.9.2021) the victim was aged about 17 and half years, therefore, the consent of a victim being a minor girl, is immaterial and he has relied upon a judgment passed by the Supreme Court in the case of X (Minor) Vs. The State of Jharkhand and another, (Criminal Appeal No.263 of 2022), decided on 21.2.2022. 7. (A). Law on bail is well settled that 'Bail is a rule and jail is an exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take