High Court
Case Details
Neutral Citation No. - 2023:AHC:124437 Court No. - 81 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38541 of 2021 Applicant :- Danish Opposite Party :- State of U.P. Counsel for Applicant :- Sunil Vashisth Counsel for Opposite Party :- G.A.
Legal Reasoning
Hon'ble Nalin Kumar Srivastava,J. 1. Heard learned counsel for the applicant, learned A.G.A for the State and perused the record. 2. As per the F.I.R., on 28.6.2021 at about 11:00 a.m., the present accused applicant enticed away the minor daughter of the informant and he himself was not traceable since then. F.I.R. was lodged on 29.6.2021 and investigation started. Now charge-sheet has been submitted and trial is going on. 3. It is submitted by learned counsel for the applicant that the applicant is innocent and has no concern with the present matter. He has not committed the present offence. It is further submitted that the entire prosecution story is false and concocted. It is further submitted that the applicant has been falsely implicated in this case due to enmity and village party-bandi. It is further submitted that when the prosecutrix was recovered from the company of the applicant, both of them deposed before the police that they love each other and want to marry. It is next contended that in the statement recorded under sections 161 and 164 Cr.P.C., identical statements have been given by the prosecutrix and she has stated that she is in love with the present applicant and both of them have solemnized marriage with each other and they willingly went to Mawana, then Meerut and subsequently to Haridwar and solemnized marriage and made physical relationship with each other. It is further submitted that the prosecutrix was a major girl on the date of incident. The prosecution has filed only a school leaving certificate of class VIII to show that the date of birth of the prosecutrix was 2.1.2006, but however during the course of trial, her mother P.W.1, the informant has stated that his present husband Kunwar Pal is her second husband with whom she had married 19 years before the date of deposition, which was recorded on 9.6.2022. When she solemnized second marriage with Kunwar Pal, prosecutrix was only 5 months old. It is further submitted that the statement of P.W.1 reveals that on the date of occurrence, the prosecutrix was not a minor girl. Prosecutrix in her deposition before the trial court as P.W.2 has not supported the prosecution version and has specifically denied the offence of rape or kidnapping by the applicant. It is further submitted that the prosecutrix belongs to S.C./S.T. community, but the ingredients of the said offence are also not made out from the statement of P.W.2, the prosecutrix before the trial court. Lastly, it is submitted that in the facts and circumstances of the case, the applicant, who has been languishing in jail since 1.7.2021, is entitled for bail. 4. On the other hand, learned A.G.A. vehemently opposed the prayer for bail and contended that the prosecutrix of the case was a minor girl on the date of incident. Sufficient evidence was collected against the accused applicant during the course of investigation and the consent of the prosecutrix, being minor, is of no legal value. A prayer for rejection of bail application has been made on the aforesaid ground. 5. I have considered the rival submissions made by the learned counsel for the parties. 6. In Union of India Vs. K.A. Najeeb (2021) 3 SCC 713, the Hon'ble Apex Court has observed that:- "15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail." 7. In Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40, the Hon'ble Supreme Court has held 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 can be 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. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson." 8. Hence, considering the statement of P.W.1 before the court, which prima facie shows that the prosecutrix was a major girl on the date of occurrence and also the statement of P.W.2 made before the trial court where she was declared hostile for not corroborating the prosecution version and also keeping in view the nature of the offence, evidence, complicity of the accused, the dictum of Hon'ble Apex Court in the aforesaid cases as well as in the case of Dataram Singh vs. State of U.P. and another, (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. 9. Let the applicant Danish involved in Case Crime No.122 of 2021, under Sections 363, 366, 376 (3) IPC, Section 3/4 (2) of POCSO Act and Section 3 (2) (5) of S.C. / S.T. Act, Police Station Hastinapur, District - Meerut be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i). The applicant will not tamper with the evidence during the trial. (ii). The applicant will not pressurize/ intimidate the prosecution witness. (iii). The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. (iv). The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. (v). The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. 10. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court. 11. It is made clear that the submissions and observations made in this order are only for deciding the bail application. Trial Court while deciding the trial will not be influenced with the same. Order Date :- 5.6.2023 ss Digitally signed by :- SANDEEP SHARMA High Court of Judicature at Allahabad