High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27815 of 2022 Applicant :- Vinod Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Chandra Prakash Pandey,Ravi Shankar Tripathi,Shailesh Kumar Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Ravi Shankar Tripathi, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant - Vinod seeking his enlargement on bail in Case Crime No. 111 of 2022, under sections 363, 366, 376(3) IPC and Section 3/4 POCSO Act, Police Station- Ujhani, District- Badaun, during the pendency of trial. Perused the record. At the very outset, the learned A.G.A. submits that notice of present bail application has been served upon first informant/opposite party no.2. However, in spite of service of notice, no one has put in appearance on behalf of first informant/opposite party no.2 to oppose the present application for bail. Record shows that in respect of an incident which is alleged to have occurred on 8.2.2022, a delayed F.I.R. dated 12.2.2022 was lodged by first informant Lallan Khan (father of the prosecutrix) and was registered as Case Crime No. 0111 of 2022, under sections 363, 366 IPC, Police Station- Ujhani, District- Badaun. In the aforesaid F.I.R., applicant Vinod has been nominated as solitary accused. The gravamen of the allegations made in the FIR is that named accused Vinod enticed away the minor daughter of the first informant namely X minor aged about 17 years. After lodging of aforesaid F.I.R., the statutory investigation of concerned case crime number commenced. Investigating Officer first examined the first informant under Section 161 Cr.P.C., who has supported the FIR. The prosecutrix was recovered on 8.3.2022. The statement of the prosecutrix was thereafter recorded under Section 161 Cr.P.C. The prosecutrix in her aforesaid statement has not supported the FIR. To the contrary, she has stated that she was having love affair with applicant and she is a consenting party to the incident giving rise to the present criminal proceedings. Subsequent to above, the prosecutrix was medically examined. The prosecutrix in her statement before the doctor has reiterated her earlier statement under Section 161 Cr.P.C. The doctor who examined the prosecutrix did not find any signs on her body so as to denote commission of sexual assault. According to learned A.G.A., as per the USG report of the prosecutrix, nothing abnormal was deducted. Certain samples were also taken from the body of the prosecutrix for pathological examination. However, the same show negative results. As per the medical opinion, the prosecutrix was said to be aged about 18 years. Ultimately, the statement of the prosecutrix was recorded under Sections 164 Cr.P.C., wherein the prosecutrix has re-joined her earlier statement under Section 161 Cr.P.C. However, a slight improvement was made by the prosecutrix in her aforesaid statement that no physical relation was made in between her and applicant during course of investigation. Investigation Officer recovered a letter alleged to have been issued by Prathamic Vidhyalaya, Sultanpur/ Composite Vidhayala, Sultanpur, wherein death of birth of the prosecutrix is said to be recorded in the School records as 1.3.2008. The FIR giving rise to the present criminal proceedings was lodged on 12.2.2022. As per the said certificate, the prosecutrix was aged about 14 years. On the basis of above and other material collected by Investigating Officer, he came to the conclusion that complicity of applicant is established in the crime in question. He, accordingly, submitted that the charge-sheet dated 26.4.2022, whereby applicant has been charge-sheeted under Sections 363, 366 and 376-3 I.P.C. and Section 3/4 (ii) POCSO Act. Learned counsel for applicant submits that though the applicant is named as well as charge-sheeted accused, but he is innocent. With reference to the statements of the prosecutrix as recorded under Sections 161 and 164 Cr.P.C., he submits that since the prosecutrix herself came to the applicant and accompanied him, therefore, no case of kidnapping is made out against applicant. It is next contended that as per the medical evidence, no offence under Section 376 I.P.C. is established against applicant. According to learned counsel for applicant, prosecution under Section 376 I.P.C. can be maintained even in the absence of medical evidence, provided the statement of the prosecutrix is of impeccable character. To buttress his submission, he has placed reliance upon the judgement of the Supreme Court in Phool Singh Vs. State of M.P. (2022) 2 SCC 74. Referring to the statement of the prosecutrix as recorded under Section 161 Cr.P.C., he submits that prosecutrix has herself stated that no physical relation was maintained in between her and applicant. In view of the aforesaid, impeccable piece of evidence, it is urged that no offence under Section 376 I.P.C. can be said to have committed by applicant. According to learned counsel for applicant, though FIR is not the encyclopedia of the prosecution case, but it must disclose the basic prosecution case. Referring to the FIR, he submits that the prosecutrix was aged about 17 years.
Decision
In view of the above as well as the statement of the prosecutrix that she has not attended any school, the letter of the Principal of the Primary School (copy of which is on record at page 13- 14 of the supplementary affidavit) is not worthy of reliance. On the aforesaid premise, it is, thus, sought to be contended that no offence under Section 3/4 POCSO Act is made out against applicant. It is lastly contended that 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 20.4.2022. As such, he has undergone more than 7 months of incarceration. In case, applicant is enlarged on bail he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A has opposed the present application for bail. He submits that since applicant is a named as well as charge-sheeted accused, therefore, he does not deserve any indulgence by this Court. However, he could not dislodge the factual/legal submissions urged by learned counsel for applicant, at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, as well as complicity of applicant, accusations made coupled with the fact that prima facie offence complained of against applicant is not made out for the reasons noted above, as per the statement of the prosecutrix and the recital contained in the FIR itself, the prosecutrix being more than 16 years of age, clean antecedents of applicant, but without making any comments on the merits of the case, applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant- Vinod, be released on bail in the aforesaid case crime number on therein 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/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (iv) 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. 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 THE HIM/HER IN ACCORDANCE WITH LAW. (v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. Order Date :- 23.12.2022 CS/- Digitally signed by :- Digitally signed by :- CHANDAN SINGH CHANDAN SINGH High Court of Judicature at Allahabad High Court of Judicature at Allahabad