High Court · 2025

Applicant :- Abhishek Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Brijesh Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J.

1. List has been revised.

2. Learned A.G.A. has informed that the notice to the informant has been served on 27.12.2024.

3. Heard Sri Brijesh Kumar Srivastava, learned counsel for the applicant, Sri Rajendra Prasad Singh, learned State Law Officer for the State and perused the record.

4. Applicant seeks bail in Case Crime No.531 of 2024, under Sections 87, 137(2), 64(1) B.N.S. and Section 5L/6 POCSO Act, Police Station Kotwali, District Mathura, during the pendency of trial. PROSECUTION STORY:

5. The FIR was instituted on suspicion against the holders of two mobile numbers, i.e. 7037280541 and 9216737807, stating that his daughter, aged about 17 years, was missing since 05.08.2024 between 2-3 p.m. ARGUMENTS ON BEHALF OF APPLICANT:

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

7. The FIR is delayed by about two days and there is no explanation of the said delay caused.

8. Subsequently, the victim in her statement recorded under Section 183 B.N.S.S. has stated that the applicant had given her patties to eat and she was rendered unconscious as such and he had taken her on a motorcycle to a secluded place, whereby he kept her in a room for ten days and committed rape with her during the said period.

9. The said allegations are false as it was not possible for a person to take a unconscious lady on a motorcycle to a place. Furthermore, there is no allegation that the applicant had kept her captive for ten days and the victim has not raised any alarm whatsoever during the said journey and even her stay at the said place.

10. The victim, by her looks, seems to be major, although as per her Class-IXth certificate, her date of birth is stated to be 09.03.2008, which cannot be taken into consideration in light of Section 94 of Juvenile Justice (Care and Protection of Children) Act.

11. Much reliance has been placed on the judgment of Supreme Court passed in P. Yuvaprakash vs. State Rep. by Inspector of Police, AIR 2023 SC 3525, whereby it is 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.

12. 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.

13. There is no criminal history of the applicant. The applicant is languishing in jail since 17.08.2024 and 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/INFORMANT:

14. The bail application has been opposed but the submissions raised by the learned counsel for the applicant could not be disputed. CONCLUSION:

15. The Supreme Court in the case of Niranjan Singh and another vs. Prabhakar Rajaram Kharote and Others, AIR 1980 SC 785 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.

16. 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.

17. 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.

18. 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".

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

20. 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.

21. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, and 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.

22. Let the applicant- Abhishek 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.

23. 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.

24. 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 :- 24.1.2025 (Ravi Kant) (Justice Krishan Pahal) RAVI KANT High Court of Judicature at Allahabad

Applicant :- Abhishek Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Brijesh Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J.

1. List has been revised.

2. Learned A.G.A. has informed that the notice to the informant has been served on 27.12.2024.

3. Heard Sri Brijesh Kumar Srivastava, learned counsel for the applicant, Sri Rajendra Prasad Singh, learned State Law Officer for the State and perused the record.

4. Applicant seeks bail in Case Crime No.531 of 2024, under Sections 87, 137(2), 64(1) B.N.S. and Section 5L/6 POCSO Act, Police Station Kotwali, District Mathura, during the pendency of trial. PROSECUTION STORY:

5. The FIR was instituted on suspicion against the holders of two mobile numbers, i.e. 7037280541 and 9216737807, stating that his daughter, aged about 17 years, was missing since 05.08.2024 between 2-3 p.m. ARGUMENTS ON BEHALF OF APPLICANT:

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

7. The FIR is delayed by about two days and there is no explanation of the said delay caused.

8. Subsequently, the victim in her statement recorded under Section 183 B.N.S.S. has stated that the applicant had given her patties to eat and she was rendered unconscious as such and he had taken her on a motorcycle to a secluded place, whereby he kept her in a room for ten days and committed rape with her during the said period.

9. The said allegations are false as it was not possible for a person to take a unconscious lady on a motorcycle to a place. Furthermore, there is no allegation that the applicant had kept her captive for ten days and the victim has not raised any alarm whatsoever during the said journey and even her stay at the said place.

10. The victim, by her looks, seems to be major, although as per her Class-IXth certificate, her date of birth is stated to be 09.03.2008, which cannot be taken into consideration in light of Section 94 of Juvenile Justice (Care and Protection of Children) Act.

11. Much reliance has been placed on the judgment of Supreme Court passed in P. Yuvaprakash vs. State Rep. by Inspector of Police, AIR 2023 SC 3525, whereby it is 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.

12. 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.

13. There is no criminal history of the applicant. The applicant is languishing in jail since 17.08.2024 and 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/INFORMANT:

14. The bail application has been opposed but the submissions raised by the learned counsel for the applicant could not be disputed. CONCLUSION:

15. The Supreme Court in the case of Niranjan Singh and another vs. Prabhakar Rajaram Kharote and Others, AIR 1980 SC 785 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.

16. 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.

17. 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.

18. 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".

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

20. 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.

21. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, and 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.

22. Let the applicant- Abhishek 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.

23. 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.

24. 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 :- 24.1.2025 (Ravi Kant) (Justice Krishan Pahal) RAVI KANT High Court of Judicature at Allahabad