High Court
Case Details
Court No. - 79 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6706 of 2022
Legal Reasoning
Applicant :- Smt. Nanhi@ Savitri@ Sunita Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sushil Kumar Tewari,Braham Singh Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. Heard Sri Sushil Kumar Tewari, learned counsel for the applicant and Sri Shravan Kumar Ojha the learned AGA for the State. This Court on 3.3.2022 had issued notices to the complainant/informant. A counter affidavit has been filed by learned AGA on behalf of State sworn on 14.3.2022 by one Sri Mahesh Chandra Gautam s/o Sri Madhusudan Gautam posted as Circle Officer, Circle Kanth, District Moradabad wherein paragraph 4 of the counter affidavit reference has been given to Annexure CA-2 which commences from page 7 till page 9, it has been stated that the notice with respect to factum of filing of the present bail application has been given to the informant as well as Child Welfare Committee. Till the dictation of the order, nobody appears on behalf of complainant or Child Welfare Committee. Thus, the service upon them is deemed sufficient. This bail application purported to be under Section 439 of the Cr.P.C. has been moved on behalf of applicant- Smt. Nanhi@ Savitri@ Sunita for enlarging him on bail in Case Crime No.906 of 2021, under Sections 363, 366A, 372, 373 IPC and 3/4/5 of Immoral Traffic (Prevention) Act, 1956, Section 81/84/87 of Juvenile Justice (Care and Protection of Children) Act, 2015 and Section 17/18 of Protection of Child From Sexual Offence Act, 2012 registered at Police Station- Civil Lines, District- Moradabad. The bail application so preferred by the applicant has been rejected by the court below on 4.1.2022. Learned counsel for the applicant has argued that a first information report has been lodged by Tammna @ Puja against the 4 nominated accused and not against the applicant before P.S. Civil Lines, District- Moradabad being FIR no.0906 of 2021 on 27.10.2021 at 14:02 hours under the aforesaid sections regarding commission of offence with an allegation that the complainant/victim happens to be 14 years aged girl and on 22.10.2021 her sister being Sanna Didi and sister Falak @ Joya had sold the victim to one Vijai Chhabra for certain amount with regard to the illegal activity pertaining to immoral traffic and thereafter the victim was taken to various places wherein her modesty was outraged and on 24/25.10.2021 the victim managed to escape from the clutches and she was intercepted by the police whereupon she was handed over to the Child Welfare Committee. Learned counsel for the applicant has further argued that neither in the first information report in question nor in the statement under Section 161 or 164 Cr.P.C the name of the victim stood surfaced. However, in the statement of Tariq Das @ Rana Sheikh the name of the applicant stood surface that he also indulged in immoral traffic. Learned counsel for the applicant has thus sought to argue that she has been falsely implicated in the case and roped in as there was no occasion to have committed said offence as in case she was in any manner whatsoever remotely connected with the same then obviously her name should have been pin pointed and marked in the first information report and in the statement under Sections 161 and 164 of the Cr.P.C. of the victim. He has further submitted that even Tariq Das @ Rana Sheikh was also not named in the first information report and thus there is no involvement of the applicant. Learned counsel for the applicant has invited the attention of this Court towards paragraph-14 so as to contend that she does not possess any criminal history. He has further drawn the attention of this Court towards paragraph 13 of the bail application so as to contend that the name of the applicant Nanhi and she was never known as Savitri or Sunita. According to learned counsel for the applicant she is unnecessary languishing in jail since 6.12.2021. Learned counsel for the applicant has sought parity with respect to the cases of Rani, Smt. Kamlesh and Nisha Gupta as according to the learned counsel for the applicant they have been enlarged on bail in Criminal Misc. Bail Application Nos.3510 of 2022, 4146 of 2022, 5019 of 2022 on 9.2.2022, 14.2.2022 and 17.2.2022. Countering the said submission, the learned A.G.A. has opposed the bail while arguing that the applicant has committed offence and merely because the name of the applicant does not find place in the first information report and the in the statement of the victim under Sections 161 and 164 of the Cr.P.C. will not be a factor germane for grant of bail to the applicant. However he does not dispute that applicant has no criminal history and co-accused has been enlarged on bail. Considering the submissions so advanced by the learned counsel for the parties on the question of bail, this Court prima facie finds that this is a fit case for grant of bail, as applicant not named in the FIR and also in the statement under Sections 161 and 164 Cr.P.C. as the applicant does not have criminal history, co-accused has been enlarged on bail and applicant is languishing in jail since 6.12.2021, as also looking into the nature of acquisition, the evidence collected by the I.O, in support of the charge, gravity of offence, nature and severity of the punishment in the case of conviction, complicity of accused and all attending circumstances. Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons. In the light of the aforenoted discussion and without making any observations on the merits of the case, the bail application is allowed. Let the applicant- Smt. Nanhi@ Savitri@ Sunita involved in aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :- i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial. (ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. (iv) 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 to any police officer or tamper with the evidence. (v) Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Any 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 :- 31.3.2022 piyush Digitally signed by PIYUSH KUMAR Date: 2022.04.01 17:05:11 IST Reason: Location: High Court of Judicature at Allahabad