Junaid v. State of U.P. and another) reported at
Case Details
Neutral Citation No. - 2023:AHC:138317 Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23509 of 2023 Applicant :- Hariom Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mohd. Afzal Counsel for Opposite Party :- G.A.,Km. Reena,Saurabh Varshney Hon'ble Ajay Bhanot,J. Shri Paritosh Kumar Malviya, learned AGA-I contends that the police authorities in compliance of the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served the bail application upon the victim/legal guardian as well as upon the CWC. By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No.250 of 2023 at Police Station-Sahawar, District-Kasganj under Sections 376D, 504, 506 IPC and Section 5/6 of the POCSO Act. The applicant is in jail since 16.01.2023. The bail application of the applicant was rejected by the
Legal Reasoning
judgement of this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021) and on the following grounds: (i) There are material contradictions in the age of the victim as recorded in various prosecution documents. (ii) The age of the victim was incorrectly got registered in the school records by the victim's parents to give her an advantage in life. The school records disclosing her age as 17 years are unreliable. (iii) The victim in her statement under Section 161 Cr.P.C. has asserted that she is 17 years of age. (iv) The age of the victim in the school certificate was got incorrectly recorded by the victim's parents to give her an advantage in life. The said school certificate showing her age as 17 years is unreliable. (v) The medical report drawn up to determine the age of the victim opines that she is between 14 years of age (As per ossification test report). Two submissions are made in regard to the aforesaid medical report. Firstly, the range of error in determining the age is about two years and the same should be read in favour of the applicant at this stage. Secondly, the relevant scientific criteria as per latest medical protocol which would establish the majority of the victim has been excluded from consideration in the medical report. The medical report is flawed. In fact the victim is a major. 4. The F.I.R. is the result of opposition of the victim's family to the said relationship with the principal offender- Pravesh. 5. No allegation of abduction, wrongful detention and commission of rape has been made by the victim against the applicant in her statements under Section 161 Cr.P.C. 6. Subsequently an aggravated and false allegations were made against the applicant in the statement of the victim under Section 164 Cr.P.C. at the behest of her parents to save the failing prosecution case. 7. The material contradictions in the F.I.R., statements of the victim under Section 161 Cr.P.C. and under Section 164 Cr.P.C. discredit the prosecution case. 8. Medical evidence to corroborate the commission of rape against the applicant has not been produced by the prosecution. 9. No offending videos has been recovered from the applicant. 10. The case of the applicant is distinguishable from the principal offender-Pravesh. 11. The applicant does not have any criminal history apart from this case. 12. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to cooperate with the court proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending. In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed. Let the applicant- Hariom 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 below. The following conditions be imposed in the interest of justice:- (i) The applicant will not tamper with the evidence or influence any witness during the trial. (ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. However, the trial court is directed to conclude the trial within a period of one year from the date of receipt of a certified copy of this order. The learned trial court shall proceed with the hearing on a day to day basis to ensure that the above stipulated timeline of one year is strictly adhered to. All witnesses and counsels are directed to cooperate with the trial proceedings. The trial court has also to be conscious of the rights of the accused persons and is under obligation of law to ensure that all expeditious, necessary and coercive measures as per law are adopted to ensure the presence of witnesses. Counsels or parties who delay or impede the proceedings should not only be discouraged from doing so but in appropriate cases exemplary costs should also be imposed on such parties/ counsel. The learned trial court shall issue summons by regular process as per Section 62 Cr.P.C. and also by registered post as provided under Section 69 Cr.P.C. to expedite the trial. The learned trial court shall promptly take out all strict coercive measures against all the witnesses in accordance with law who fail to appear in the trial proceeding. Counsels or parties who delay or impede the proceedings should not only be discouraged from doing so but in appropriate cases exemplary costs should also be imposed on such parties/ counsel. The police authorities shall ensure that warrants or any coercive measures as per law taken out by the learned trial court to ensure that the attendance of the witnesses are promptly executed. The Superintendent of Police, Kasganj shall file an affidavit before the trial court on the date fixed regarding status of execution of the warrants/service of summons taken out by the learned trial court. In case there is a failure on part of the police authorities to execute the warrants or other coercive measures, the Superintendent of Police, Kasganj shall state the reasons for the same in the said affidavit and also show the steps taken to execute the warrants. The Superintendent of Police, Kasganj shall simultaneously inform the Additional Director General of Police (ADG) Agra Zone, about the aforesaid failure of the police authorities in the first instance to execute the warrants and coercive measures issued by the learned trial court. If required, the Additional Director General of Police (ADG) Agra Zone, may issue an appropriate directions to ensure that the warrants issued are promptly executed by the learned trial court. The delay in execution of warrants and consequent absence of witnesses is one of the principal causes of delays in criminal trials and has to be addressed effectively by all stakeholders. The trial judge shall submit a fortnightly report on the progress of trial and the steps taken to comply with this order to the learned District Judge. The District Judge, Kasganj shall submit a compliance report regarding the status of the trial and the steps taken to comply with the orders of this Court after every month before the Hon'ble Administrative Judge. A copy of this order be communicated to the learned trial judge through the learned District Judge, Kasganj by the Registrar (Compliance) by FAX. Order Date :- 12.7.2023 Ashish Tripathi
Arguments
The following arguments made by Shri Mohd. Afzal, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Ms. Reena, learned counsel for the informant and Shri Paritosh Kumar Malviya, learned AGA-I from the record, entitle the applicant for grant of bail: 1. Learned counsel for the applicant contests the minority of the victim as depicted in the prosecution case. 2. The victim was wrongly shown as a minor in the F.I.R. as 14 years only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment. 3. Learned counsel for the applicant contests the age of the victim set out in the prosecution case in light of the