Junaid v. State of U.P. and another) reported at
Case Details
Court No. - 79 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 16846 of 2021 Applicant :- Smt. Vindhyachali Devi Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Amit Daga,Abhishek Kumar Jaiswal Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J. Heard Shri Ajay Kumar Srivastava, learned counsel for the applicant and Shri Nafees Ahmad, learned AGA for the State through video conferencing mode. Shri Nafees Ahmad, learned AGA for the State contends that the police authorities in compliance
Legal Reasoning
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 notices of the anticipatory bail application upon the victim as well as CWC. However, Form A and Form B have not been supplied by the police authorities to the learned AGA. Senior Superintendent of Police, Varanasi is directed to take appropriate action as per law against the responsible officers who have failed to provide Form A and Form B. It is also submitted that no instructions from the CWC district Varanasi attesting the compliance of directions issued by this Court in Junaid (supra) are available in the record. Shri Ajay Kumar Srivastava, learned counsel for the applicant contends that the applicant has been falsely implicated in the case. As per the medical report, the age of the victim is between 16-17 and half years. This fact is not disputed by Shri Nafees Ahmad, learned A.G.A. However, Shri Ajay Kumar Srivastava, learned counsel for the applicant further contends that in fact the victim is a major. No medical examination for determination of age has been conducted as per the medical protocols by expert doctors from reputed institutions, as that would falsify the prosecution case. The applicant is the aunt of one Raj Kumar, who is the friend of one Anil Yadav. The victim in her statement has admitted to intimacy with the accused-Anil Yadav. She eloped with him and the said Raj Kumar of her own volition. Thereafter, they arrived at the house of the applicant who gave them shelter for one night. Even as per the statement of the victim, when the applicant came to know that the couple had in fact eloped, she bid them to leave her house forthwith. They did so without any ado. There are material contradictions in the statement made by the victim under Section 161 Cr.P.C. and Section 164 Cr.P.C. An aggravated version has been created in the statement under Section 164 Cr.P.C. by the victim at the behest of her parents to deflect attention from her own conduct. Learned counsel for the applicant also claims congruency in role and seeks parity in relief with co-accused namely, Akash Yadav @ Chhotu, who has been granted bail by this Court on 10.01.2020 in Criminal Misc. Bail Application No.1716 of 2020. The charge-sheet has been submitted. The applicant has cooperated with the investigation and was not arrested during the investigation. These facts strengthen his case for grant of bail. The narrative has the advantage of good authorities. Reference may made to the judgement of this Court in Radha Kant Upamanyu and another Vs. State of U.P. in Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.c. No.17638 of 2021 rendered on 09.12.2021, and also the judgement rendered by the Supreme Court in Dr. Rajesh Pratap Giri Vs. State of U.P. and another in Criminal Appeal No.272-273 of 2021 decided on 05.03.2021, which have held that liberty of a person who participated in the investigation and was not arrested should not be curtailed merely because a charge sheet has been submitted against him. Apart from the instant case the applicant does not have any criminal history. Lastly it is contended by the learned counsel for applicant that the applicant shall not abscond and will fully cooperate in the criminal law proceedings. The applicant shall not tamper with the evidence nor influence the witnesses in any manner. Learned AGA could not satisfactorily dispute the aforesaid submissions from the record. He, however, does not dispute the fact that the applicant does not have any criminal history apart from the instant case. Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons. I see merit in the submissions of the learned counsel for the applicant and hold that the applicant is entitled to be enlarged on anticipatory bail. In the light of the preceding discussion and without making any observations on the merits of the case, the anticipatory bail application is allowed. The applicant-Smt. Vindhyachali Devi involved in Case Crime No.372 of 2019, under Section 368 IPC and Section 7/8 of the POCSO Act, Police Station-Chaubeypur, District-Varanasi, is granted anticipatory bail till the conclusion of the trial on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall attend the Court proceedings as and when required. (ii) The applicant shall not directly or indirectly make any inducement, threat or promise or to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the court to any police officer or tamper with the evidence. (iii) The applicant shall not leave India without the previous permission of the court. In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application for cancellation of anticipatory bail before this Court. In case any false facts have been stated on behalf of the applicant or material facts have been suppressed, the State or any concerned party may file an application for recall of this order. The applicant is directed to produce a copy of this order before the S.S.P./S.P., who shall ensure the compliance of present order. Order Date :- 31.1.2022 Ashish Tripathi