High Court
Case Details
Court No. - 82 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36277 of 2022 Applicant :- Savej Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Jitendra Prasad Mishra,Sanjay Kumar Jain Counsel for Opposite Party :- G.A. Hon'ble Ajai Kumar Srivastava-I,J. Suplementary afÏdavit filed today is taken on record. Heard Sri Jitendra Prasad Mishra, learned counsel for the applicant, Sri Devesh Kumar Singh, learned A.G.A. for the State and perused the entire record. As per ofÏce report, notice upon opposite party no.2 has been served personally. Today, when the matter was taken up for hearing, no one has appeared for the opposite party no.2. The instant application for bail has been moved on behalf of the applicant, Savej with the prayer to enlarge him on bail in F.I.R./Case Crime No.32 of 2022, under Sections 363, 376, 506, 120B I.P.C. and 3/4 POCSO Act, 2012, Police Station Sakrauli, District Etah during pendency of the trial. Learned counsel for the applicant has submitted
Legal Reasoning
that a false first information report came to be lodged against three named accused persons including the present applicant. The victim is stated to have left her parental home with cash amounting to Rs.20,000/- as well as one gold chain, one gold ring and a pair of silver anklet. It is alleged that she was enticed away by the present applicant and other named co-accused persons. Initially, a first information report came to be lodged under Sections 363, 366, 120B I.P.C. However, during investigation, Section 376 and 506 I.P.C. and 3/4 POCSO Act came to be added against the present applicant and upon conclusion of investigation, charge sheet came to be submitted against the present applicant only. The fact that other two named accused persons were exonerated because no credible evidence could be collected against them during investigation itself falsifies the prosecution story to that extent. It is also submitted that though the victim is stated to be a child, however, she, in her statement recorded as P.W.-2 in S. C. No.500 of 2022 before the learned trial Court, has stated herself to be major. Though the victim, in her statements recorded under Sections 161 and 164 Cr.P.C. has supported the prosecution case, however, during trial, the statement of first informant was recorded as P.W.-1 in S. C. Case No.500 of 2022, who has not supported the prosecution case and has been declared hostile. Similarly the victim has also been examined as P.W.-2, who has not supported the prosecution case and has been declared hostile. She has stated that neither she was enticed away by the present applicant nor did he commit rape upon her. The accused/applicant is languishing in jail since 29.04.2022, who has no previous criminal history. His further submission is that in case, the applicant is enlarged on bail, he will not misuse the liberty of bail and he will also fully cooperate with the trial court in getting the trial concluded expeditiously. He has also submitted that the applicant will not intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case. Per contra, learned A.G.A. for the State has
Legal Reasoning
vehemently opposed the prayer for grant of bail. However, he has been unable to dispute the other factual submissions advanced by the learned counsel for the applicant including the fact that the statements of first informant, Idrish Khan and the victim were recorded as P.W.-1 and P.W.-2 in S. C. No.500 of 2022, who have been declared hostile because they did not support the prosecution case. Having heard the learned counsel for the applicant, learned A.G.A. for the State and upon perusal of record, it transpires that initially a first information report came to be lodged against three named accused persons including the present applicant under Sections 363, 366 and 120B I.P.C. only. However, after the victim was recovered and her statements were recorded under Sections 161 and 164 Cr.P.C., Section 376 and 506 I.P.C. and 3/4 POCSO Act came to be added and upon conclusion of the investigation, charge sheet has been submitted against the present applicant only. The charge sheet has also been submitted against one another co-accused, Anshul under Sections 363 and 120B I.P.C. whose name has surfaced during investigation as stated by learned A.G.A.. The first informant and the victim have been examined as P.W.-1 and P.W.-2 in S. C. No.500 of 2022 before the learned trial Court, who have been declared hostile because they did not support the prosecution case. The victim has specifically stated that rape upon her was not committed by the present applicant. She has also stated that she left her parental home voluntarily. She has stated her age to be about 21 years. The accused/applicant is languishing in jail since 29.04.2022, who has no previous criminal history. Thus, having regard to the overall facts and circumstances of this case and also keeping in view the arguments advanced on behalf of the parties, the nature of offence, evidence regarding the complicity of applicant and without expressing any opinion on the merit of the case, a case for bail is made out. The bail application is, thus, allowed. Let the applicant-Savej be released on bail in the aforesaid case on his furnishing a personal bond and two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:- 1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial; 2. The applicant shall cooperate in the trial sincerely without seeking any adjournment; 3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail; 4. 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 them from disclosing such facts to the Court or to any police ofÏcer; 5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence, in case the witnesses are present in court; 6. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, default of this condition is deliberate or without sufÏcient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. The trial Court is also directed to expedite the trial of the aforesaid case by observing the provisions of Section 35 (2) of POCSO Act strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment. It is made clear that the trial of the aforesaid case shall be conducted without being influenced by any observation made herein above which are confined to the disposal of the instant application for bail. Let a copy of this order be also sent to Sessions Judge concerned for bringing this to the notice of the Court concerned that keeping in view the statutory provisions as contained in Section 228-A I.P.C. and the judgment rendered by Hon'ble the Supreme Court in Nipun Saxena and another vs. Union of India and others, reported in (2019) 2 SCC 703, the learned trial Court is expected not to disclose the name of the victim while recording her statement because mention of her name in her statement reveals her identity. Order Date :- 1.2.2023 Mahesh Digitally signed by :- Digitally signed by :- Digitally signed by :- MAHESH KUMAR MAHESH KUMAR MAHESH KUMAR High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad