High Court
Case Details
Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18137 of 2021 Applicant :- Ashish Pasi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Prem Narayan Rai,Raj Kumar Verma Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Prem Narayan Rai, the learned counsel for applicant-Ashish Pasi and the learned A.G.A. for State. 2. Perused the record. 3. Instant bail application has been filed by applicant-Ashish Pasi seeking his enlargement on bail in Case Crime No.0456 of 2019 under Sections 363, 366, 376 (3) I.P.C. and Sections 3/4 (2) POCSO Act, Police Station-Akbarpur, District- Kanpur Dehat, during pendency of trial. 4. Present application for bail came up for orders on 22.07.2021 and this Court passed the following Order:-
Legal Reasoning
" Heard learned counsel for the applicant as well as learned AGA for the State. Issue notice to the opposite party no. 2. Notice has been accepted by learned AGA on behalf of opposite party no. 1. Put up this case on 09.09.2021 as fresh before the appropriate Bench. Order Date :- 22.7.2021 " 5. Pursuant to aforesaid order dated 22.07.2021, office has submitted a report dated 07.09.2021. As per letter of C.J.M. concerned, notice of present bail application has been served upon opposite party-2. However inspite of service of notice, no one has put in appearance on behalf of opposite party-2 to oppose this bail application. 6. Record shows that in respect of an incident, which is alleged to have occurred on 21.07.2019 a delayed F.I.R. dated 23.07.2019 was lodged by first informant (wife of Rakesh) and was registered as Case Crime No.0456 of 2019 under Sections 363, 366 I.P.C. Police Station-Akbarpur, District- Kanpur Dehat. In the aforesaid F.I.R., two persons namely Ashish Pasi (applicant herein) and Rakesh have been nominated as named accused. 7. The gravamen of the allegations made in aforesaid F.I.R. is to the effect the named accused-Ashish Pasi, enticed away the prosecutrix i.e. daughter of first informant on 21.09.2019 at around 12.00 P.M. Family members of the prosecutrix made a hectic search but they failed to locate the whereabouts of the prosecutrix. 8. 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. Prosecutrix was recovered on 26.08.2020. Thereafter, statement of prosecutrix was recorded by Investigating Officer under Section 161 Cr.P.C. Copy of the same is on record as Annexure-3 to the affidavit filed in support of present application for bail. In her aforesaid statement, prosecutrix has not supported the prosecution story as unfolded in the F.I.R. To the contrary, the prosecutrix has stated that she herself accompanied the applicant out of her own sweet will. She has further stated that she went to Gujrat alongwith applicant and solimnized marriage with applicant in a temple. Subsequent thereto, the couple proceed to Sujalpur, Madhay Pradesh and they lived there together as husband and wife more than one year and one month. Prosecutrix has, however, stated that she is aged about 17 and a half years. Thereafter, prosecutrix was medically examined. Her Medico Legal Report is on record as Annexure-4 to the affidavit. Prosecutrix in her statement before Doctor has reiterated her earlier statement under Section 161 Cr.P.C. However, the Doctor, who examined the prosecutrix did not found any sighs of physical injury on the body of prosecutrix. Certain samples were taken from the body of the prosecutrix for pathological examination. However, Supplementary Medico Legal Report of the prosecutirx has not been brought on record. Ultimately, the statement of prosecutrix was recorded under Section 164 Cr.P.C. The same is on record as Annexure-5 to the affidavit. Prosecutrix in her aforesaid statement has reiterated her earlier statement recorded under Section 161 Cr.P.C. However, she stated that she is aged about 15 years and applicant-Ashish Pasi is her uncle. 9. During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of examination, he came to the conclusion that complicity of named accused Ashish Pasi is fully established in the crime in question. He, accordingly submitted the charge-sheet dated 28.10.2020 whereby applicant have been charge-sheeted under Sections 363, 366, 376 (3) I.P.C. and Sections 3/4 (2) POCSO Act whereas named accused Rakesh has been exculpated. 10. Learned counsel for applicant submits that though the applicant is 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. He has then invited attention of the Court to the statements of prosecutrix recorded under Sections 161 and 164 Cr.P.C.. On the basis of above, he submits that prosecutrix has not supported the prosecution story as unfolded in the F.I.R. It is then contended that since the prosecutrix went away from her house and accompanied the applicant out of her own sweet will, no offence under Sections 363, 366 I.P.C. is made out against applicant. He has also contended that as per statements of prosecutrix recorded under Sections 161/164, it is established that prosecutrix herself accompanied the applicant and solemnized marriage with applicant and lived together as husband and wife for more than one year and one month at Sujalpur, Madhay Pradesh. Thus prosecutrix is a consenting party and no offene under Section 376 (3) I.P.C. is also made out against applicant. Even though on the date of marriage, age of prosecutrix was below 18 years, however, simply on that ground, marriage of prosecutrix with applicant shall not be rendered void as per the provisions of Hindu Marriage Act. It is lastly contended that applicant is in jail since 31.08.2020. Thus he has under-gone almost one year, eight months and three days of incarceration. Applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Charge-sheet has already been submitted therefore the evidence sought to be relied upon by the prosecution against applicant stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during the course of trial. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. On the cumulative strength of aforesaid, learned counsel for applicant thus urged that applicant be enlarged on bail. 11. Per contra, the learned A.G.A. has opposed the present bail application. Learned A.G.A. submits that applicant is not only a named accused but also a charge-sheeted accused. He therefore does not deserve any indulgence by this Court. However, learned A.G.A. could not dispute the factual and legal submissions urged by learned counsel for applicant. 12. Having heard learned counsel for applicant, learned A.G.A. for State, upon consideration of evidence on record, accusations made as well as complicity of applicant but without expressing any opinion on the merits of the case, applicant has made out a case for bail. 13. Let the applicant-Ashish Pasi involved in aforesaid 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 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. 14. 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. 15. Accordingly, present bail application is allowed. Order Date :- 4.5.2022 YK Digitally signed by YASHWANT KUMAR Date: 2022.05.04 17:02:35 IST Reason: Location: High Court of Judicature at Allahabad