High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14155 of 2022
Legal Reasoning
Applicant :- Afsar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rakesh Kumar Singh,Dhirendra Kumar Srivastava,Rahul Kumar Tripathi Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. (In Re:- Criminal Misc (Exemption) Application No.1 of 2022) 1. After hearing the learned counsel for parties and upon perusal of record, the ground prayed for exemption for filing certified copy of the F.I.R. appears to be bonafide. 2. Accordingly, exemption application is allowed. (Order on Bail Application) 1. Heard Mr. Dhirendra Kumar Srivastava, the learned counsel for applicant and the learned A.G.A. for State. 2. Perused the record. 3. This is a repeat application. 4. The first bail application of applicant was rejected by this Court vide order dated 25.2.2022 which reads as under:- "Case called out in revise list. No one appears on behalf of applicant to press this application. Learned A.G.A. for State is present. Application is dismissed for want for prosecution." 5. This repeat application for bail has been filed by applicant, Afsar seeking his enlargement on bail in Case Crime No.136/2019, under Sections 363, 366, 376(2)(Jha) I.P.C., @ Section 3/4 of The Protection of Children From Sexual Offenes Act, 2012 and Section 3(2)5 & 3(1)12 S.C./S.T. Act, Police Station- Charwa, District- Kaushambi, during the pendency of trial. 6. Record shows that in respect of an incident which is alleged to have occurred on 03.7.2019, a delayed F.I.R. dated 08.07.2019 was lodged by the first informant namely, Smt Syhama Devi(mother of the prosecutrix) and was registered as Case Crime No.136/2019, under Sections 363, 366, 376(2)(Jha) I.P.C., @ Section 3/4 of The Protection of Children From Sexual Offenes Act, 2012 and Sections 3(2)5 & 3(1)12 S.C./S.T. Act, Police Station- Charwa, District- Kaushambi. In the aforesaid F.I.R., applicant, Afsar has been nominated as solitary named accused. 7. The gravamen of the allegations made in the F.I.R. is to the effect that named accused enticed away the minor daughter of the informant who is said to be aged about 16 years. 8. After lodging of the afore-mentioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime in terms of chapter XII Cr.P.C. He examined the first informant and other witnesses under Section 161 Cr.P.C. who have supported the prosecution story as unfolded in the F.I.R. Thereafter, statement of the prosecutrix was recorded under Section 161 Cr.P.C. wherein she has supported the F.I.R. The prosecutrix was thereafter requested for her medical examination. In her statement before the Doctor, prosecutrix has alleged that her modesty was dislodged by named accused contrary to her wishes. The Doctor who examined the prosecutrix however, did not find any injury on the body of prosecutrix so as to denote commission of sexual violence. The Doctor however has observed as follows with regard to private part of the prosecutrix:- "Hymen Injured" 9. Certain samples were taken from the body of the proseutrix for pathological examination. However upon examination they showed negative results. During the course of investigation, Investigating Officer recovered the School Leaving Certificate of the prosecutrix wherein her date of birth is recorded as 16.12.2002. Thereafter statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein the prosecutrix has reiterated her earlier statement recorded under Section 161 Cr.P.C. Ultimately, Investigating Officer on the basis of the above and other material collected by him during the course of investigation opined to submit the charge-sheet. Accordingly, he submitted the charge-sheet dated 5.9.2019. 10. Learned counsel for the applicant contends that applicant is innocent. He has been falsely implicated in afore-mentioned case crime. The prosecutrix is a consenting party. As per medical evidence, she is aged about 18-19 years and, therefore, major. The prosecutrix herself accompanied the applicant. As such, no offence can be said to have been committed by the applicant under Sections 363, 366, 376(2)(Jha) I.P.C., @ Section 3/4 of The Protection of Children From Sexual Offenes Act, 2012. Applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 09.07.2019. As such, he has undergone three years and three months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall cooperate with the trial. Moreover, charge-sheet has already been submitted against the applicant, therefore, evidence sought to be relied upon by prosecution against applicant stands crystallized. As such custodial arrest of applicant is not absolutely necessary during the course of trial. 11. Per contra, the learned A.G.A. has opposed the present bail application. He submits that as per the School Leaving Certificate of the prosecutrix, her date of birth is 16.12.2002. The occurrence giving rise to the present criminal proceedings is alleged to have occurred on 3.7.2019. As such, the prosecutrix was aged about 16 years on the date of occurrence. He further submits that the prosecutrix in her statement under Section 161/164 Cr.P.C. as well as her statement before the Doctor has clearly implicated the applicant in the crime in question. Medical evidence also supports the prosecution story. It is thus urged by the learned A.G.A. that no indulgence be granted by this Court in favour of applicant. 12. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of the record and considering the fact that prosecutrix in her statement under Section 161/164 Cr.P.C. as well as her statement before the Doctor has clearly implicated the applicant in the crime in question which has been committed contrary to her wishes as well as the age of the proesectrix but without expressing any opinion on the merit of the case, this court does not find any good ground to enlarge the applicant on bail. 13. Accordingly, this application for bail fails and is liable to be rejected. 14. It is accordingly, rejected. Order Date :- 4.11.2022 Sachin/- Digitally signed by SACHIN TIWARI Date: 2022.11.05 14:52:56 IST Reason: Location: High Court of Judicature at Allahabad