High Court · 2025

present repeat application for bail has been served upon first informant/opposite party-2. However, in spite of service of notice, neither any counter affidavit has been filed by first informant/opposite party-2 in opposition to this repeat application for bail nor anyone has put in appearance on his behalf to oppose this repeat application for bail, even in revised call.

5. The first bail application of applicant was rejected by this Court by a detailed order dated 24.11.2022 passed in Criminal Misc. Bail Application No. 38650 of 2022 (Monu Vs. State of U.P. and 3 Others). For ready reference, the order dated 24.11.2022 is reproduced herein-under: " Heard Mr. Jagdish Prasad Mishra, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Monu seeking his enlargement on bail in Case Crime No. 0197 of 2021, under Sections 376, 313, 316, 452, 323, 506 IPC and Sections 3/4 POCSO Act, P.S. Shahpur, District Muzaffarnagar, during the pendency of trial. Perused the record. Record shows that in respect of an incident, which is alleged to have occurred on 1.7.2022, first informant Smt. Tarawati (mother of the prosecutrix) lodged a delayed F.I.R. dated 2.7.2022 which was registered as Case Crime No. 0197 of 2021, under Sections 376, 313, 316, 452, 323, 506 IPC and Sections 3/4 POCSO Act, P.S. Shahpur, District Muzaffarnagar In the aforesaid F.I.R., three persons namely Monu (applicant herein), Tinku and Kamlesh have been nominated as named accused. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Monu is a neighbour of first informant. He is alleged to be in love affair with the daughter of first informant and by extending false promise of marriage, he has maintained physical relation with the daughter of first informant. On account of above, the daughter of first informant came in family way. Upon gaining knowledge of aforesaid fact, named accused in the absence of family members of prosecutrix took her to Tomar Clinic and Ultra Sound Centre on 1.7.2022. At the aforesaid clinic one Dr. Deepa Tomar conducted abortion. When the first informant objected to above, then named accused came at the house of first informant, conducted marpit and exhorted that if any proceedings are conducted against them, then she shall be killed. After lodging of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. He examined the prosecutrix under Section 161 Cr. P. C. The prosecutrix in her aforesaid statement has supported the F.I.R. She has detailed about an occurrence in which her modesty was dislodged in the house of applicant and about the other occurrence when the mother of applicant is alleged to have taken her for abortion, the abortion having been carried out and thereafter she being dropped at her home with the extended threat that in case she disclosed about the same to any body, she would be killed. Thereafter, the prosecutrix was requested for her medical examination. The prosecutrix in her statement before the Doctor has supported the F.I.R. but not the manner of occurrence as detailed in the F.I.R. In fact, the prosecutrix now stated that her modesty was dislodged repeatedly. However, the Doctor who examined the prosecutrix did not find any sign on her body denoting commission of sexual violence. With regard to the private part of the prosecutrix, the Doctor opined as follows:- Hymen old torn, healed margins. Ultimately the Doctor opined as follows:- No external injury present. No sign of force/forceful penetration however sexual assault cannot be ruled out. DNA report awaited. Certain samples were collected from the body of the prosecutrix for pathological examination. The supplementary medico legal report of the prosecutrix as endorsed in the case diary has been brought on record as Annexure 6 to the affidavit. Perusal of same goes to show that prosecutrix had conceived and remains of conception/blood clots were seen in X Ray. As per the medical opinion, the prosecutrix was said to be aged about 18 years. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr. P. C. The prosecutrix in her aforesaid statement has rejoined her earlier statement recorded under Section 161 Cr. P. C. Thereafter, Investigating Officer examined other witnesses including the first informant who have substantially supported the F.I.R. On the basis of above and other material collected by the Investigating Officer, he opined to submit charge sheet. Accordingly, he submitted the charge sheet. Learned counsel for applicant submits that though applicant is a named and charge sheeted accused, but he is innocent. As per medical opinion, the prosecutrix is aged about 18 years. As such she is a consenting and willing party as the occurrence is alleged to have taken place in the house of applicant. In view of above, no offence under Section 376 IPC can be said to have been committed by applicant. There is nothing on record to show that prosecutrix is below 18 years of age. As such, no offence under Sections 3/4 POCSO Act is made out against applicant. The statements of the prosecutrix as recorded under Section 161 Cr. P. C. before the Doctor and the statement under Section 164 Cr. P. C. are inconsistent. As such, same do not fall in the category of impeccable evidence. Neither in the F.I.R. nor in the aforementioned statements of prosecutrix, the day, date and time of occurrence has been mentioned. The prosecution story is highly improbable. The Doctors who have been examined by the Investigating Officer have not supported the prosecution story to the extent that abortion was carried out upon the prosecutrix. As such, the prosecution of applicant is on account of an ulterior motive. Even otherwise, applicant is a man of clean antecedents and has no criminal history to his credit except the present one. Applicant is in jail since 4.7.2022. As such, he has undergone more than more than 3 and a 1/2 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. has opposed the present application for bail. Learned A.G.A. contends that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. According to learned A.G.A. there is nothing on record to infer false or malicious prosecution of applicant. The prosecutrix is an illiterate girl with mental deformity. However, she has supported the F.I.R. The absence of day, date and time of occurrence in the relevant column of the F.I.R., the statement of first informant or the prosecutrix by itself is not so sufficient to disbelieve the prosecution story. He has then invited the attention of the Court to the recital contained at page 27 of the paper book, and which according to learned A.G.A. is an strong indicator to suggest that prosecution case is truthful. He has also referred to the supplementary medical report of the prosecutrix at page 57 of the paper book. On the basis of above, he contends that medical evidence clearly corroborates the prosecution story. On the cumulative strength of above, the learned A.G.A. contends that applicant does not deserve any indulgence of this Court. Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the supplementary medical legal report of the prosecutrix clearly goes to show that prosecutrix came in family way, but without expressing any opinion on the merits of the case, no ground for bail is made out by the applicant. In view of above, application for bail fails and is liable to be rejected. Accordingly, the bail application is rejected. Order Date :- 24.11.2022 "

6. Learned counsel for applicant contends that subsequent to the above order dated 24.11.2022, charges were framed by court below against accuse/applicant in exercise of jurisdiction under Section 228 Cr.P.C. Accused/applicant denied the charges so framed and demanded trial. Resultantly, the trial procedure commenced.

7. Prosecution in discharge of it's burden to bring home the charges so framed against accused/applicant adduced four prosecution witnesses upto this stage namely P.W.1 Puspa (Lady Constable), P.W.-2 Garima Singh, P.W.-3, the prosecutrix and P.W.-4, Smt. Tarawati (first informant)

8. According to the learned counsel for accused/applicant, the prosecutrix and the first informant i.e. P.W.-3 and P.W.-4 in their depositions before court below have not supported the prosecution story as unfolded in the F.I.R. Moreover, the first informant i.e. P.W.-4 has been declared hostile by court below.

9. On the above premise, the learned counsel for applicant submits that once the statements of first informant and the prosecutrix have been recorded before court below and they have not supported the F.I.R. giving rise to present application for bail then in that eventuality it cannot be said that if the applicant is enlarged on bail he shall misuse the liberty of bail by either hampering the course of trial or by terrorizing the witnesses. Furthermore, once the prosecutrix and the first informant have themselves not supported the F.I.R. in their depositions before court below, therefore, no good ground now exists to prolong the custodial arrest of applicant during the pendency of trial. As such, the accused/applicant is liable to the enlarged on bail. .

10. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 04.07.2022. As such, he has undergone more than two years and eight months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against accused/applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such incriminating circumstance has emerged on the record necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged by the learned counsel for accused/applicant that applicant is liable to be enlarged on bail. In case the accused/applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

11. Per contra, the learned A.G.A. representing State-opposite party-1 has vehemently opposed the prayer for bail. He submits that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Since the applicant is guilty of committing an offence, which is not only illegal but also immoral, therefore, no equity exists in favour of applicant so as to enlarge him on bail. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

12. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, upon consideration of material on record, evidence, nature and gravity of offence, accusations made as well as complicity of applicant and coupled with the during course of trial four prosecution witnesses namely P.W.1 Puspa (Lady Constable), P.W.-2 Garima Singh, P.W.-3 the prosecutrix and P.W.-4 Smt. Tarawati (first informant) have deposed before court below, however, P.W.-3 the prosecutrix and P.W.-4 the first informant have not supported the F.I.R. giving rise to this repeat application for bail in their depositions before court. P.W.-3, the first informant, has been declared hostile, in view of above it cannot be said that in case the accused/applicant is enlarged on bail then in that eventuality he shall either terrorize the witnesses or shall hamper the course of trial, since the prosecutrix and the first informant in their depositions before court below have not supported the F.I.R. giving rise to present repeat application for bail, therefore, no good ground now exists to prolong the custodial arrest of applicant, applicant is in jail since 04.07.2022, as such, he has undergone more than two years and eight months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against accused/applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet inspite of above, the learned A.G.A. could not point out any such incriminating circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373, the clean antecedents of applicant inasmuch as the applicant has no criminal history to his credit except the present one, the period of incarceration undergone, therefore irrespective of the objections raised by learned A.G.A. in opposition to present repeat application for bail but without making any comment on the merits of the case, applicant has made out a case for bail.

13. Accordingly, present third application for bail is allowed.

14. Let the applicant-Monu involved in aforesaid case crime number 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 which are being imposed in the interest of justice:- (i) Applicant will not tamper with prosecution evidence. (ii) 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) Applicant will not indulge in any unlawful activities. (iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

15. 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 of applicant and send him to prison. Order Date :- 7.3.2025 YK YASHWANT KUMAR High Court of Judicature at Allahabad

present repeat application for bail has been served upon first informant/opposite party-2. However, in spite of service of notice, neither any counter affidavit has been filed by first informant/opposite party-2 in opposition to this repeat application for bail nor anyone has put in appearance on his behalf to oppose this repeat application for bail, even in revised call.

5. The first bail application of applicant was rejected by this Court by a detailed order dated 24.11.2022 passed in Criminal Misc. Bail Application No. 38650 of 2022 (Monu Vs. State of U.P. and 3 Others). For ready reference, the order dated 24.11.2022 is reproduced herein-under: " Heard Mr. Jagdish Prasad Mishra, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Monu seeking his enlargement on bail in Case Crime No. 0197 of 2021, under Sections 376, 313, 316, 452, 323, 506 IPC and Sections 3/4 POCSO Act, P.S. Shahpur, District Muzaffarnagar, during the pendency of trial. Perused the record. Record shows that in respect of an incident, which is alleged to have occurred on 1.7.2022, first informant Smt. Tarawati (mother of the prosecutrix) lodged a delayed F.I.R. dated 2.7.2022 which was registered as Case Crime No. 0197 of 2021, under Sections 376, 313, 316, 452, 323, 506 IPC and Sections 3/4 POCSO Act, P.S. Shahpur, District Muzaffarnagar In the aforesaid F.I.R., three persons namely Monu (applicant herein), Tinku and Kamlesh have been nominated as named accused. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Monu is a neighbour of first informant. He is alleged to be in love affair with the daughter of first informant and by extending false promise of marriage, he has maintained physical relation with the daughter of first informant. On account of above, the daughter of first informant came in family way. Upon gaining knowledge of aforesaid fact, named accused in the absence of family members of prosecutrix took her to Tomar Clinic and Ultra Sound Centre on 1.7.2022. At the aforesaid clinic one Dr. Deepa Tomar conducted abortion. When the first informant objected to above, then named accused came at the house of first informant, conducted marpit and exhorted that if any proceedings are conducted against them, then she shall be killed. After lodging of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. He examined the prosecutrix under Section 161 Cr. P. C. The prosecutrix in her aforesaid statement has supported the F.I.R. She has detailed about an occurrence in which her modesty was dislodged in the house of applicant and about the other occurrence when the mother of applicant is alleged to have taken her for abortion, the abortion having been carried out and thereafter she being dropped at her home with the extended threat that in case she disclosed about the same to any body, she would be killed. Thereafter, the prosecutrix was requested for her medical examination. The prosecutrix in her statement before the Doctor has supported the F.I.R. but not the manner of occurrence as detailed in the F.I.R. In fact, the prosecutrix now stated that her modesty was dislodged repeatedly. However, the Doctor who examined the prosecutrix did not find any sign on her body denoting commission of sexual violence. With regard to the private part of the prosecutrix, the Doctor opined as follows:- Hymen old torn, healed margins. Ultimately the Doctor opined as follows:- No external injury present. No sign of force/forceful penetration however sexual assault cannot be ruled out. DNA report awaited. Certain samples were collected from the body of the prosecutrix for pathological examination. The supplementary medico legal report of the prosecutrix as endorsed in the case diary has been brought on record as Annexure 6 to the affidavit. Perusal of same goes to show that prosecutrix had conceived and remains of conception/blood clots were seen in X Ray. As per the medical opinion, the prosecutrix was said to be aged about 18 years. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr. P. C. The prosecutrix in her aforesaid statement has rejoined her earlier statement recorded under Section 161 Cr. P. C. Thereafter, Investigating Officer examined other witnesses including the first informant who have substantially supported the F.I.R. On the basis of above and other material collected by the Investigating Officer, he opined to submit charge sheet. Accordingly, he submitted the charge sheet. Learned counsel for applicant submits that though applicant is a named and charge sheeted accused, but he is innocent. As per medical opinion, the prosecutrix is aged about 18 years. As such she is a consenting and willing party as the occurrence is alleged to have taken place in the house of applicant. In view of above, no offence under Section 376 IPC can be said to have been committed by applicant. There is nothing on record to show that prosecutrix is below 18 years of age. As such, no offence under Sections 3/4 POCSO Act is made out against applicant. The statements of the prosecutrix as recorded under Section 161 Cr. P. C. before the Doctor and the statement under Section 164 Cr. P. C. are inconsistent. As such, same do not fall in the category of impeccable evidence. Neither in the F.I.R. nor in the aforementioned statements of prosecutrix, the day, date and time of occurrence has been mentioned. The prosecution story is highly improbable. The Doctors who have been examined by the Investigating Officer have not supported the prosecution story to the extent that abortion was carried out upon the prosecutrix. As such, the prosecution of applicant is on account of an ulterior motive. Even otherwise, applicant is a man of clean antecedents and has no criminal history to his credit except the present one. Applicant is in jail since 4.7.2022. As such, he has undergone more than more than 3 and a 1/2 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. has opposed the present application for bail. Learned A.G.A. contends that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. According to learned A.G.A. there is nothing on record to infer false or malicious prosecution of applicant. The prosecutrix is an illiterate girl with mental deformity. However, she has supported the F.I.R. The absence of day, date and time of occurrence in the relevant column of the F.I.R., the statement of first informant or the prosecutrix by itself is not so sufficient to disbelieve the prosecution story. He has then invited the attention of the Court to the recital contained at page 27 of the paper book, and which according to learned A.G.A. is an strong indicator to suggest that prosecution case is truthful. He has also referred to the supplementary medical report of the prosecutrix at page 57 of the paper book. On the basis of above, he contends that medical evidence clearly corroborates the prosecution story. On the cumulative strength of above, the learned A.G.A. contends that applicant does not deserve any indulgence of this Court. Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the supplementary medical legal report of the prosecutrix clearly goes to show that prosecutrix came in family way, but without expressing any opinion on the merits of the case, no ground for bail is made out by the applicant. In view of above, application for bail fails and is liable to be rejected. Accordingly, the bail application is rejected. Order Date :- 24.11.2022 "

6. Learned counsel for applicant contends that subsequent to the above order dated 24.11.2022, charges were framed by court below against accuse/applicant in exercise of jurisdiction under Section 228 Cr.P.C. Accused/applicant denied the charges so framed and demanded trial. Resultantly, the trial procedure commenced.

7. Prosecution in discharge of it's burden to bring home the charges so framed against accused/applicant adduced four prosecution witnesses upto this stage namely P.W.1 Puspa (Lady Constable), P.W.-2 Garima Singh, P.W.-3, the prosecutrix and P.W.-4, Smt. Tarawati (first informant)

8. According to the learned counsel for accused/applicant, the prosecutrix and the first informant i.e. P.W.-3 and P.W.-4 in their depositions before court below have not supported the prosecution story as unfolded in the F.I.R. Moreover, the first informant i.e. P.W.-4 has been declared hostile by court below.

9. On the above premise, the learned counsel for applicant submits that once the statements of first informant and the prosecutrix have been recorded before court below and they have not supported the F.I.R. giving rise to present application for bail then in that eventuality it cannot be said that if the applicant is enlarged on bail he shall misuse the liberty of bail by either hampering the course of trial or by terrorizing the witnesses. Furthermore, once the prosecutrix and the first informant have themselves not supported the F.I.R. in their depositions before court below, therefore, no good ground now exists to prolong the custodial arrest of applicant during the pendency of trial. As such, the accused/applicant is liable to the enlarged on bail. .

10. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 04.07.2022. As such, he has undergone more than two years and eight months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against accused/applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such incriminating circumstance has emerged on the record necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged by the learned counsel for accused/applicant that applicant is liable to be enlarged on bail. In case the accused/applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

11. Per contra, the learned A.G.A. representing State-opposite party-1 has vehemently opposed the prayer for bail. He submits that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Since the applicant is guilty of committing an offence, which is not only illegal but also immoral, therefore, no equity exists in favour of applicant so as to enlarge him on bail. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

12. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, upon consideration of material on record, evidence, nature and gravity of offence, accusations made as well as complicity of applicant and coupled with the during course of trial four prosecution witnesses namely P.W.1 Puspa (Lady Constable), P.W.-2 Garima Singh, P.W.-3 the prosecutrix and P.W.-4 Smt. Tarawati (first informant) have deposed before court below, however, P.W.-3 the prosecutrix and P.W.-4 the first informant have not supported the F.I.R. giving rise to this repeat application for bail in their depositions before court. P.W.-3, the first informant, has been declared hostile, in view of above it cannot be said that in case the accused/applicant is enlarged on bail then in that eventuality he shall either terrorize the witnesses or shall hamper the course of trial, since the prosecutrix and the first informant in their depositions before court below have not supported the F.I.R. giving rise to present repeat application for bail, therefore, no good ground now exists to prolong the custodial arrest of applicant, applicant is in jail since 04.07.2022, as such, he has undergone more than two years and eight months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against accused/applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet inspite of above, the learned A.G.A. could not point out any such incriminating circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373, the clean antecedents of applicant inasmuch as the applicant has no criminal history to his credit except the present one, the period of incarceration undergone, therefore irrespective of the objections raised by learned A.G.A. in opposition to present repeat application for bail but without making any comment on the merits of the case, applicant has made out a case for bail.

13. Accordingly, present third application for bail is allowed.

14. Let the applicant-Monu involved in aforesaid case crime number 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 which are being imposed in the interest of justice:- (i) Applicant will not tamper with prosecution evidence. (ii) 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) Applicant will not indulge in any unlawful activities. (iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

15. 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 of applicant and send him to prison. Order Date :- 7.3.2025 YK YASHWANT KUMAR High Court of Judicature at Allahabad