High Court · 2022

Heard Mr. Rajiv Lochan Shukla along with Mr. Vijay Prakash Chaturvedi, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Atikur Rahman @ Sahil, seeking his enlargement on bail in Case crime No. 293 of 2020, under sections 376, 386, 506 IPC and Section 67 I.T Act and 3/4 POCSO Act, Police Station- Kaptanganj, District Kushinagar during the pendency of trial. Perused the record. It transpires from record that in respect of an incident which is alleged to have occurred on 8.4.2019, a highly belated F.I.R. dated 16.9.2020 was lodged by first informant Ajaz Ahmad, father of prosecutrix, which was registered as Case Crime No.293 of 2020, under sections 376, 386, 506 IPC and Section 67 I.T Act and 3/4 POCSO Act, Police Station- Kaptanganj, District Kushinagar. In the aforesaid F.I.R. applicant has been nominated as solitary named accused. The gravamen of the allegations made in aforesaid F.I.R. is to the effect that applicant has dislodged the modesty of first informant i.e. prosecutrix in planned and clandestine manner on the false promise of marriage. Subsequent to aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of aforementioned Case Crime Number in terms of Chapter XII Cr.P.C. During course of Investigation, Investigating Officer examined the prosecutrix under section 161 Cr.P.C. Copy of same is on record as Annexure-5 to the affidavit. The prosecutrix in her aforesaid statement has not supported the prosecution story as unfolded in F.I.R. To the contrary, the prosecutrix has disclosed her intimacy with applicant. She has also stated that her modesty was forcibly disloged by applicant. Thereafter the prosecutrix was requested for her medical examination, which was refused by her. Ultimately, statement of prosecutrix was recorded under section 164 Cr.P.C. Same is on record as annexure-6 to the affidavit. The prosecutrix in her aforesaid statement has detailed the manner and nature of relationship between herself and applicant and also the manner in which she came to maintain physical relation with applicant. During course of investigation, Investigating Officer recovered the High School mark-sheet of the prosecutrix, wherein her date of birth has been recorded as 10.6.2021. The incident in question has occurred on 8.4.2019. As such, on the date of occurrence, the age of prosecutrix was 17 years 10 months. Investigating Officer on the basis of statements of witnesses examined under section 161 Cr.P.C. and other material collected by him during course of investigation has submitted charge sheet dated 2.7.2021, whereby applicant has been charge sheeted under sections 376, 386, 506 IPC and Section 67 I.T Act and 3/4 POCSO Act, Police Station- Kaptanganj, District Kushinagar. Learned counsel for applicant contends that applicant is innocent. He has been falsely implicated in above mentioned case crime number. Allegations made in F.I.R. are false and concocted. As such, applicant is being falsely prosecuted in above mentioned case crime number. It is next contended that even though occurrence giving rise to present application has occurred on 8.4.2019. F.I.R. in respect of the same was lodged on 16.9.2020 i.e. after one year and five months. However neither in the F.I.R. nor in the statement of first informant, the delay in lodging the F.I.R. has been explained. He, further submits that F.I.R. giving rise to this application has come in existence pursuant to an order passed on the application under section 156 (3) Cr.P.C. However the period from April 2019 upto February 2020 remains unexplained. Since delay has not been explained, the prosecution of applicant itself cannot be maintained. In support of above he has relied upon para-8 of judgement of Supreme Court in P. Rajagopal Vs. State of Tamilnadu, AIR 2019 SC 2866. For ready reference same is reproduced herein-under:- "8. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely. [See Apren Joseph v. State of Kerala, (1973) 3 SCC 114; Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1]. In the matter on hand, the entire family of PW1 was at the mercy of Accused No. 1, who was very rich and influential. Accused No.1 acted as a benefactor to the family and had helped them financially and otherwise on multiple occasions. Under such circumstances, PW1 might have been reluctant to lodge a complaint immediately after the occurrence of the said incident, especially when Accused No. 1 had employed his henchmen to keep the house and movements of PW1 and her family under surveillance. Moreover, no material has been brought to our notice by the defence to prove that the delay in filing the F.I.R. was with the intention of false implication. Thus, the explanation given by PW1 for the delay remains untainted. In our considered opinion, looking at the totality of the facts and circumstances, the Trial Court and the High Court were justified in condoning the delay and in concluding that the said delay was not vital to the case of the prosecution." It is next contended that prosecutrix has refused her internal medical examination. However, the doctor who examined the prosecutrix did not find any injury so as to denote the commission of sexual offence upon the body of prosecutrix. Placing reliance upon judgement of Supreme Court in Vineet Kumar Vs. State of U.P., (2017) 13 SCC 369 he contends that in the absence of medical evidence, no offence under section 376 and 3/4 POCSO Act is made out against applicant. It is further submitted that as per the statements of prosecutrix as recorded under section 161/164 Cr.P.C., prosecutrix is a consenting party. Prosecutrix has herself accompanied the applicant. He lastly contends that applicant is a man of clean antecedent inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 13.6.2021. As such, he has undergone more than nine months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicant is a named as well as charge sheeted accused. He therefore does not deserve any indulgence of this Court. However, he could not dispute the factual and legal submissions urged by learned counsel for applicant. Having heard learned counsel for applicant, learned A.G.A. for State, upon perusal of material brought on record as well as the complicity of applicant and accusation made but without making any comment on the merits of the case, applicant has made out a case for bail. Accordingly, bail application is allowed. Let the applicant Atikur Rahman @ Sahil, be released on bail in the aforesaid case crime number 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/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 :- 7.4.2022 Arshad MAHMOOD Reason: Location: High Court of Judicature at Allahabad