High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6680 of 2022 Applicant :- Sonu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vivek Dhaka,Devendra Singh,Pravindra Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Devendra Singh, the learned counsel for applicant and the learned A.G.A. for State. 2. Perused the record. 3. This application for bail has been filed by applicant-Sonu seeking his enlargement on bail in Case Crime No. 323 of 2021 under Sections 376 (3) 506 I.P.C. and Section 3/4 9L/10 POCSO Act, Police Station- Hapur Dehat, District-Hapur, during pendency of trial. 4. Learned A.G.A. contends that notice has been served upon
Legal Reasoning
first informant/opposite party-2. However, inspite of service of notice upon opposite party-2, no one has put in appearance on behalf of first informant to oppose this bail application. 5. Instant bail application came up for admission on 20.09.2022 and this Court passed the following order:- "The C.J.M. Hapur is directed to produce the victim before the C.M.O. Hapur for her ossification test by panel of three doctors within one week from the date of production of certified of this order before him. The C.J.M. Hapur shall sent the report to this court on or before the date fixed. Copy of this order shall be produced before the C.J.M. Hapur within three days . Put up this application on 20.10.2022 as a fresh case. Order Date :- 20.9.2022 " 6. Pursuant to above order dated 20.09.2022, office has submitted a report dated 20.10.2022 stating therein that the report sent by Chief Judicial Magistrate, Hapur received in sealed cover is placed on record. 7. Record shows that in respect of repeated offence alleged to have been committed by applicant, an F.I.R. dated 23.12.2021 was lodged by first informant Smt. Laxmi (Mother of the prosecutrix) and was registered as Case Crime No. 323 of 2021 under Sections 376 (3) 506 I.P.C. and Sections 3/4 9L POCSO Act, Police Station- Hapur Dehat, District-Hapur. In the aforesaid F.I.R. applicant Sonu has been nominated as solitary named accused. 8. As per the prosecution story as unfolded in the F.I.R., it is alleged that named accused, who is brother-in-law (Jeeja) of the prosecutrix repeatedly dislodged the modesty of the prosecutrix. 9. After registration of aforesaid F.I.R., Investigating officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. He examined first informant and other witnesses under Section 161 Cr.PC. The statement of prosecutrix was also recorded under Section 161 Cr.P.C. werein also prosecutrix has supported the prosecution story as unfolded in the F.I.R. There after prosecutrix was medically examined by Doctor. The prosecutrix in her statement before Doctor has repeated her earlier statement as recorded under Section 161 Cr.P.C. Thereafter, the Doctor who examined the prosecutrix recorded following with regard to private part of the prosecutrix: " Rupture, No fresh bleeding, No enema, No tear, No laceration, No oedema" 10. Certain samples were taken from the body of the prosecutrix for pathological examination. However, supplementary medical report has not been brought on record. Prosecutrix was also examined under Section 164 Cr.P.C. wherein also she supported the prosecution story. Ultimately, on the basis of statement of witnesses so examined including prosecutrix and other material collected by Investigating Officer during course of investigation, which is substantially adverse to the applicant, he opined to submit a charge sheet. Accordingly, Investigating Officer submitted the charge-sheet dated 31.12.2021 whereby applicant has been charge-sheeted under Sections under Sections 376 (3) 506 I.P.C. and Sections 5L/6 POCSO Act, Police Station- Hapur Dehat, District-Hapur. 10. Learned counsel for applicant submits that though the applicant is brother-in-law (Jeeja) of prosecutrix (a named and charge sheeted accused) but he is innocent. He has been falsely implicated in afore-mentioned case crime number. Allegations made in F.I.R. are false and concocted. As such, applicant is being falsely prosecuted in afore-mentioned case crime number. It is then contended that sister of prosecutrix has not been examined by Investigating Officer. Present criminal proceedings initiated by first informant are malicious and same have been engineered on account of anterior motive. Applicant is in custody since 25.02.2021 As such, he has undergone more than one year and 8 months of incarceration. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. Since the charge-sheet has already been submitted against applicant therefore the evidence sought to be relied upon by the prosecution, stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during the course of trial. On the cumulative strength of aforesaid, he submits that applicant be enlarged on bail. 11. Per contra, the learned A.G.A. has opposed the present application for bail. Learned A.G.A. contends that prosecutrix in her statement under Sections 161 and 164 has supported the prosecution story as unfolded in the F.I.R. There is nothing on record to show that malicious prosecution has been initiated against applicant. No pleading has been raised in the affidavit filed in support of present bail application with regard to conduct of the prosecutrix for initiating false prosecution. According to learned A.G.A., the prosecutrix is a minor child, aged about 15 years. He has then invited the attention of Court to the order dated 20.09.2022 passed by this Court. He submits that pursuant to above order dated 20.09.2022, ossification test of the prosecutrix was conducted by Chief Medical Officer, Hapur and accordingly, he submitted a report wherein age of the prosecutrix is mentioned to be 15 years. Applicant is real brother-in-law (Jeeja) of the prosecutrix and he has misused his position. As such, allegations made against applicant, who is married man, fall in the category of bigamy, which is not permissible in law. On the aforesaid premise, the learned A.G.A. contends that applicant does not deserve any indulgence by this Court. Therefore, present applicant for bail is liable to be rejected.
Legal Reasoning
12. When confronted with above, learned counsel for applicant could not overcome the same. 13. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that prosecutrix is of tender age (15 years) and the applicant is real brother-in-law (Jeeja) of the prosecutrix as well as prosecutrix have supported the prosecution story in her statements under sections 161 and 164 Cr.P.C. but without expressing any opinion on merits of the case, this Court does not find any good ground to enlarge the applicant on bail. 13. Consequently, present application fails and is therefore liable to rejected. 14. Accordingly, present application for bail is rejected. Order Date :- 2.11.2022 YK Digitally signed by YASHWANT KUMAR Date: 2022.11.02 17:17:11 IST Reason: Location: High Court of Judicature at Allahabad