High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18848 of 2022 Applicant :- Banty @ Indrajeet Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Kiran Tiwari,Diwan Saifullah Khan,Mahesh Chandra Tiwari,Prabhat Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J. 1. Heard learned Counsel for the applicant as well as learned A.G.A. and perused the record.
Legal Reasoning
2. As per counter affidavit filed by learned AGA, first informant has been effected service in April, 2022, but no one has put in appearance on their behalf. 3. The accused- applicant is involved in Case Crime No. 206 of 2021, under Section 147, 148, 149, 307, 376, 511, 323, 325, 504, 506, 354(Kha) I.P.C. and 7/8 POCSO Act, Police Station Sainya, District- Agra. 4. As per contents of the FIR, the minor daughter of the informant aged about 15years was enticed away by one Narayan Singh to the fields, whereafter the applicant alongwith co-accused also reached the place and sexually molested the victim. Subsequently, altercation has taken place between the first informant, applicant and the co- accused. 5. It is argued by the learned counsel for the applicant that in the statements under sections 161 and 164 Cr.P.C., the victim has supported the prosecution case. As per medical report, the age of victim is 18 years. There is no educational certificate of the victim supporting her age to be 15 years. As per medical report, no injury has been found on the person of the victim. The victim has refused for her internal examination. As per the FIR, there is allegation of preparing clipping/video/nude photograph of the victim but no such material has been recovered by the Investigating Officer. Chargesheet has also not been filed under the sections of I.T. Act. 6. Per contra learned A.G.A. opposed the prayer for bail and argued that the victim is minor, though he has accepted that as per allegation in the FIR, the Investigating Officer did not recover any nude photograph or any video clipping of the victim. 7. Considering the submissions advanced by learned counsel for the parties and upon perusal of the material on record, prima facie, and subject to further evidence being led in trial, it appears that although allegation of sexual molestation with the minor daughter of the informant has been indicated in the FIR but as per medical report her age is indicated as 18 years. There is no injury found on the body of the victim, who has also refused internal medical examination. Allegation of videography have been made but no such video was recovered. The applicant does not have any criminal history and he is in custody since 9.3.2022. 8. Co-accused Narayan Singh having same role has already been admitted to bail by a co-ordinate Bench of this Court by order dated 12.10.2022 passed in Criminal Misc. Bail Application No. 16664 of 2022. As such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case. 9. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :- "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty." "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution." 10. Considering the submissions advanced by learned counsel for the parties and upon perusal of the material on record, prima facie, and subject to further evidence being led in trial, it appears that deceased was shot by all on which he fell down but as per postmortem report no such injury has been found and death occurred due to ante- mortem head injury. No recovery has been made from the possession of the applicant. General allegation of beating by bricks and stones has been levelled and since incident occurred near the house of the applicant therefore, he has been falsely implicated in the case. As such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case. 11. Accordingly bail application is allowed. 12. Let applicant Banty @ Indrajeet involved in the aforesaid case crime 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) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant 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. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicant 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 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. 13. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case. 14. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Order Date :- 16.12.2022 S.K.S. Digitally signed by SUNIL KUMAR SINGH Date: 2022.12.19 14:20:40 IST Reason: Location: High Court of Judicature at Allahabad