High Court · 2022

Heard Shri Girish Chandra Shukla, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record. The present bail application has been filed on behalf of applicant Vijay under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No.0299 of 2021 for offence punishable under Sections 363, 376 of the Indian Penal Code and Section 3/4 Protection of Children From Sexual Offences Act, 2012, registered at Police Station Shahganj, District Agra, during pendency of the trial, after rejecting the bail application of the applicant by Special Judge (POCSO Act) Court no.29, Agra vide order dated 02.09.2021. Brief facts of the case are that the First Information Report dated 24.07.2021at 9.00 am has been lodged by the mother of victim stating therein that on 18.09.2021 between 8.00 am to 9 am, first informant along with victim had gone to worship at temple. As the first informant was deeply involved in worship inside the temple and her daughter was standing out side the temple. After some time when the first informant came out of temple she did not find her daughter there. On desperate search for her here and there, she could not trace her out. The first informant, thereafter returned home but her daughter was not there first informant, her husband and other family members searched extensively everywhere but she could not be found. The first informant is afraid of her daughter being kidnapped by unknown person. After lodging the first information report, statement of victim under 161 Cr.P.C. has been recorded on 28.07.2021, Medical Examination of the victim was conducted on 27.07.2021 at 6.20 P.M . Statement of victim has been recorded under Section 164 Cr.P.C. on 02.08.2021. After recording the statement of prosecution witnesses and completing the investigation, charge sheet has been filed on 15.09.2021 against the applicant. The applicant was arrested on 31.07.2021. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is submitted that age of applicant is 23 years at the time of occurrence. It is further submitted that as per school Certificate, age of victim is 13 years at the time of occurrence but as per Radio-logical examination, age of victim is 18 years. It is further that as per Radio-logical report, Epiphysis of elbow, knee and wrist of the victim have been found fused. It is further submitted that the victim has not supported the prosecution case in her statements recorded under Section 161 and 164 Cr.P.C. It is further submitted that the victim has not supported the prosecution case even before the Medical Officer at the time of her medical examination. He has next argued that the applicant has no criminal history to his credit. if the applicant is released on bail, he shall not misuse the liberty of bail. The applicant is not convicted in cognizable offence by any court. Per contra, learned AGA has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail. After considering the facts of the present case it prima facie appears that; (a) as per as per Radio-logical examination, age of victim is 18 years, Epiphysis of elbow, knee and wrist of the victim have been found fused; (b) victim is has not supported the prosecution case in her statements recorded under Section 161 and 164 Cr.P.C. It would not be appropriate to discuss the same at the stage; (c) the victim has not supported the prosecution case even before the Medical Officer at the time of her medical examination; (d) age of applicant is 23 years at the time of incident; It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with. Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed. Let applicant, Vijay be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions: (i) 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. (ii) The applicant shall not pressurize/intimidate the prosecution witnesses. (iii) 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 of Cr.P.C. (iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court. (v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. (vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law. The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. Order Date :- 24.3.2022 SRIVASTAVA Reason: Location: High Court of Judicature at Allahabad