High Court
Case Details
Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12095 of 2022 Applicant :- Salim Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vishal Agarwal Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J. Vide order dated 27.05.2022 notices was issued to opposite party no.2. As per office report dated 12.07.2022 notice was served upon opposite party no.2 and in spite of service of notice, when the case is called out, today none appeared on behalf of the informant, therefore, present bail application is being heard and decided finally.
Legal Reasoning
Heard Sri Vishal Agarwal, learned counsel for the applicant and Sri Kailash Prakash Pathak, learned AGA for the State. The instant bail application has been moved by the applicant to release him on bail in Case Crime No. 442 of 2021, under Sections 363, 366, 376D, 120B IPC read with Section 5 cha/6 POCSO Act, Police Station Sikandaraoo, District Hathras during pendency of the trial. Learned counsel for the applicant submitted that applicant made accused in the present matter by the informant i.e father of the victim merely on the basis of suspicion along with three others. He further submitted that as per FIR on 18.09.2021, the minor daughter of the informant was enticed away by the applicant and other co-accused persons and in this regard on 19.09.2021, the FIR of the present case was lodged. He further submitted that the victim i.e. daughter of opposite party no.2 was recovered on 22.09.2021 and on same day her statement under Section 161 Cr.P.C. was recorded and according to her statement, the allegation of rape was only against co-accused Jeetu and she did not make any accusation against the applicant and she only stated that applicant met on the way. Thereafter, victim was handed over to the informant i.e. her father and when on 29.09.2021 i.e. after a week her statement under Section 164 Cr.P.C. was recorded then she stated that applicant and co-accused Jeetu both committed rape with her, therefore, no reliance can be placed on the statement of the victim recorded under Section 164 Cr.P.C. as earlier in her statement recorded under Section 161 Cr.P.C. she did not allege anything against the applicant and further, as from the date of recording the statement under Section 161 Cr.P.C. and till the date of recording the statement under Section 164 Cr.P.C. she was under the custody of her parents, therefore, possibility can be ruled out that her statement recorded under Section 164 Cr.P.C. would be tutored one and further the applicant is in jail since September, 2021 and he is having no criminal history. Per contra, learned AGA opposed the prayer and submitted that the victim is a minor girl. According to her school leaving certificate, her date of birth is 12.09.2005, therefore, she is only 16 years of age and as per radiologist report also, her age is around 16 years, therefore, she is admittedly below 18 years and as in her statement recorded under Section 164 Cr.P.C. there is allegation of rape against the applicant, therefore, it is not a fit case, in which, applicant should be released on bail but learned AGA could not dispute the fact that statement of victim under Section 164 Cr.P.C. was recorded after seven days of her statement recorded under Section 161 Cr.P.C. and in the statement recorded under Section 161 Cr.P.C. she did not make any accusation against the applicant and further during the period i.e. from the date of statement recorded under Section 161 Cr.P.C. and till date her statement recorded under Section 164 Cr.P.C. victim was in the custody of her parents. I have heard both the parties and perused the record of the case. FIR of the preset case was lodged on 19.09.2021 and informant i.e. father of the victim nominated four accused persons in the FIR including applicant with the allegation that they enticed away her minor daughter and when on 22.09.2021 victim was recovered and her statement was recorded under Section 161 Cr.P.C. then she made allegation of rape only against co- accused Jeetu and she did not allege any accusation against the applicant thereafter her custody was handed over to the informant and after seven days when her statement was recorded under Section 164 Cr.P.C. then she alleged that applicant and co-accused Jeetu both were committed rape with her. Although, as per medical evidence as well as school leaving certificate, she is about 16 years of age but as in her statement recorded under Section 161 Cr.P.C. which was duly signed and recorded in the presence of lady constable she did not make any allegation of rape against the applicant and after seven days in her statement recorded under Section 164 Cr.P.C. she made allegation of rape against applicant along with co-accused Jeetu, therefore, considering the fact that applicant is in jail since September, 2021, without expressing any opinion on the merits of the case, I am of the view that it is a fit case, in which, applicant should be released on bail. Hence, the bail application is allowed. Let the applicant- Salim be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions: 1) The applicants shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A of the Indian Penal Code. 2) The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case (ii) framing of charge and (iii) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant 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. 3) The applicants will not tamper with the prosecution witnesses.; 4) The applicants will not indulge in any illegal activities during the period of bail. 5) In case of breach of any of the above conditions, the trial court would be at liberty to cancel the bail of the applicant. Order Date :- 28.7.2022 AK Pandey Digitally signed by ANUPAM KUMAR PANDEY Date: 2022.07.29 17:12:51 IST Reason: Location: High Court of Judicature at Allahabad