High Court · 2022

Heard Sri Ali Hasan, learned counsel for the applicant, Sri S.B. Maurya, learned AGA for the State and perused the material on record. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Rohit Saroj @ Rahul, seeking enlargement on bail during trial in connection with Case Crime No. 142 of 2021, under Sections 363, 376 I.P.C. and Section 3/4 POCSO Act, registered at P.S. Jalalpur, District Jaunpur. Notice was issued to the opposite party no. 2 vide order dated 27.11.2021. As per office report dated 15.3.2022 a report of C.J.M., Jaunpur has been received and a perusal of the same which is dated 23.12.2021 it is apparent that notice has been served through heir on the opposite party no. 2. No one appears on behalf of the opposite party no. 2 even when the matter has been taken up in the revised list. Service of notice upon the opposite party no. 2 is sufficient. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the F.I.R. was lodged under Section 363 I.P.C. against the applicant only giving the age of the prosecutrix as 14 years, with the allegation that she has been enticed away by the applicant. It is argued that the prosecutrix was interrogated and her statement under Section 161 Cr.P.C. was recorded from which it is apparent that she went with the applicant out of her own sweet will and she loved him for about two years. Subsequently the prosecutrix in the statement under Section 164 Cr.P.C. discloses her age as 16 years and gives a varied statement as has been given by her under Section 161 Cr.P.C. wherein she states that the applicant committed rape upon her, but still from the said statement it is apparent that she went with the applicant from her house and stayed sometimes with him. It is argued that the C.M.O., Jaunpur has opined her age to be about 17 years and by giving benefit of variation of two years she would be major. It is argued that except for the same there is no document regarding age of the girl as she is an illiterate girl. It is argued that the present case is a case of consent. It is argued that the applicant has no other criminal antecedents as stated in para-23 of the affidavit and is in jail since 11.6.2021. Per contra, learned State counsel opposed the prayer for bail but could not dispute the arguments as aforesaid. After having heard learned counsels for the parties and perusing the record, it is evident that the prosecutrix as per report of C.J.M., Jaunpur is aged about 17 years and by giving benefit of variations of two years, she would be major. There is variation in the statements of the prosecutrix under Sections 161 and 164 Cr.P.C. In the statement under Section 161 Cr.P.C. she states that she went with the applicant out of her own sweet will and she was having affair with the applicant for about two years but in the statement under Section 164 Cr.P.C. she states that the applicant and other accused persons took her forcefully. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail. Let the applicant- Rohit Saroj @ Rahul, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (out of which one surety should be the family member of the applicant and the other surety should be a local person) 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that he 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his 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, in accordance with law, under section 174-A I.P.C. (V) 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 him in accordance with law and the trial court may proceed against him under Section 229- A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison. The bail application is allowed. (Samit Gopal,J.) Order Date :- 22.3.2022 Naresh