Sanjay Kumar Dubey v. State of U.P. and three others)

3. Notice was issued to the first informant vide order dated

12.11.2024 by this Court.

4. As per office report dated 07.01.2025, notice has been served on the first informant personally. Despite service of notice, no one appears on behalf of the first informant.

5. The present application under Section 439 Cr.P.C. has been filed by the applicant Sanjeev Kumar Dubey Alias Sanju Dubey with a prayer to release him on bail in Case Crime No. 191 of 2021, under Sections 363, 376 I.P.C. and Section 5/6 POCSO Act, registered at Police Station Sujanganj, District Jaunpur, during the pendency of trial.

6. This is the third bail application of the applicant. The first bail application of the applicant was rejected on merits by this Court vide order dated 26.04.2022 passed in Criminal Misc. Bail Application No.49895 of 2021 (Sanjay Kumar Dubey vs. State of U.P. and three others).

7. The second bail application of the applicant was also rejected on merits by this Court vide order dated 23.08.2023 passed in Criminal Misc. Bail Application No. 40089 of 2022 (Sanjeev Kumar Dubey Alias Sanju Dubey vs. State of U.P. and three others).

8. Learned counsel for the applicant has raised three submissions before this Court which are : (i) The period of detention by submitting that the applicant is in jail since 06.10.2021 and as such he has undergone about three years and five months in jail. (ii) The trial although in the present matter is going on but till date only five prosecution witnesses have been examined whereas as per the charge sheet, there are 17 prosecution witnesses and as such the trial will take time. (iii) The applicant is having no criminal antecedents as per paragraph 20 of the affidavit and as such he may be granted bail.

9. Per contra, learned counsel for the State vehemently opposed the prayer for bail and submitted that the first two bail applications of the applicant have been rejected by this Court on merits. It is submitted that the trial in the matter is going on and all the three witnesses including the victim who was examined as P.W. 2 have supported the prosecution case and role has been assigned to the applicant of committing rape upon the victim repeatedly for a period of five days. It is submitted that the victim at the time of incident was aged about 14 years.

10. After having heard learned counsels for the parties and perusing the records, it is evident that the first bail application of the applicant was rejected by this Court vide order dated

26.04.2022. The said order reads as under :- "Heard Sri Prabha Shanker Mishra, learned counsel for the applicant and Sri Ankit Srivastava, learned counsel for the State and perused the material on record. Vide order dated 25.11.2021, notice was issued to the first informant. As per the office report dated 20.12.2021, a report regarding service of notice has been received. The report dated 17.12.2021 of the Chief Judicial Magistrate, Jaunpur is on record which states that notice has been served on the first informant. Despite service of notice, no one appears on behalf of the first informant. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Sanjeev Kumar Dubey, seeking enlargement on bail during trial in connection with Case Crime No. 191 of 2021, under Sections 363, 376 I.P.C. & Section 5/6 POCSO Act, registered at Police Station Sujanganj, District Jaunpur. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the first information report was lodged under Section 363 I.P.C. by Smt Kiran Devi, the mother of the prosecutrix although naming the applicant as the person who had enticed her daughter but the same is false and incorrect. The prosecutrix in her statement recorded under Section 161 Cr.P.C. has stated that she went with the applicant out of her own sweet-will but subsequently in her statement recorded under Section 164 Cr.P.C. she has stated that she was raped by the applicant and one Vishal whose name has been disclosed by her. It is argued that charge-sheet was submitted by the police in which Vishal has been exonerated and as such the prosecution case becomes doubtful. It is further argued that the Chief Medical Officer has opined the age of the prosecutrix as 17 years and by giving variation of two years she would be a major. During investigation Sections 376 I.P.C. and 5/6 POCSO Act have been added. The applicant has no criminal history as stated in para 25 and is in jail since 06.10.2021. Per contra, learned counsel for the State vehemently opposed the prayer for bail and argued that the date of birth of the prosecutrix as per the school records is 10.08.2004 and as such she was a minor. It is argued that since there is date of birth recorded in the school records, the same would prevail over the opinion of the Chief Medical Officer. It is argued that there are allegations against the applicant and he is named in the first information report. After having heard the learned counsel for the parties and perusing the record, it is evident that the prosecutrix is a minor as per the school records. There are allegations of rape against the applicant. In so far as co-accused Vishal is concerned, he has been exonerated but the role of the applicant is consistent. Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected."

11. The second bail application of the applicant was also rejected by this Court vide order dated 23.08.2023. The said order reads as under :- "1. List revised.

2. Heard Sri Sunil Kumar, learned counsel for the applicant and Sri Sanjay Kumar Singh, learned counsel for the State and perused the material on record.

3. Notice was issued to the first informant vide order dated 29.11.2022. As per office report dated 10.01.2023, notice has been served personally on the first informant. Despite service of notice and the matter being taken up in the revised list no one appears on behalf of the first informant before the Court.

4. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Sanjeev Kumar Dubey @ Sanju Dubey, seeking enlargement on bail during trial in connection with Case Crime No. 191 of 2021, under sections 363, 376 I.P.C. and Section 5, 6 of the Protection of Children from Sexual Offences Act, 2012, Police Station Sujanganj, District Jaunpur.

5. This is second bail application. First bail application of the applicant was rejected vide order dated 26.04.2022 passed by this Court in Criminal Misc. Bail Application No. 49895 of 2021 (Sanjeev Kumar Dubey Versus State of U.P.).

6. Learned counsel for the applicant has raised the sole argument while placing paragraphs 4 and 5 of the supplementary dated 08.05.2023 that the applicant and his wife are blessed with two children aged about 9 years and 8 years who are studying in class 4 and 3, respectively, and have to suffer a lot as they are lacking the primary and basic guidance which ought to have been given by the father and in the absence of the guidance their childhood and future career is at stake and same is also being observed by the administration of the school in which they are studying. The copies of the Aadhar card of the children and their progress report have been filed as Annexure No. SA-1 and 2, respectively, to the affidavit which have been placed before the Court. It is argued that the applicant is in jail since 06.10.2021 and as such the bail application of the applicant be allowed and he may be directed to be released on bail.

7. Per contra learned counsel for the State vehemently opposed the prayer for bail and argued that the first bail application of the applicant has been rejected by this Court on merits. The victim is a minor girl as per the school record. The applicant is named in the F.I.R. and there are allegation against him in the statement of the victim recorded during investigation and as such the bail application of the applicant be rejected.

8. After hearing the counsel for the parties and perusing the record, it is evident that the first bail application of the applicant has been rejected vide order dated 26.04.2022 passed by this Court in Criminal Misc. Bail Application No. 49895 of 2021 (Sanjeev Kumar Dubey Versus State of U.P.). The said order reads thus: "Heard Sri Prabha Shanker Mishra, learned counsel for the applicant and Sri Ankit Srivastava, learned counsel for the State and perused the material on record. Vide order dated 25.11.2021, notice was issued to the first informant. As per the office report dated 20.12.2021, a report regarding service of notice has been received. The report dated 17.12.2021 of the Chief Judicial Magistrate, Jaunpur is on record which states that notice has been served on the first informant. Despite service of notice, no one appears on behalf of the first informant. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Sanjeev Kumar Dubey, seeking enlargement on bail during trial in connection with Case Crime No. 191 of 2021, under Sections 363, 376 I.P.C. & Section 5/6 POCSO Act, registered at Police Station Sujanganj, District Jaunpur. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the first information report was lodged under Section 363 I.P.C. by Smt Kiran Devi, the mother of the prosecutrix although naming the applicant as the person who had enticed her daughter but the same is false and incorrect. The prosecutrix in her statement recorded under Section 161 Cr.P.C. has stated that she went with the applicant out of her own sweet-will but subsequently in her statement recorded under Section 164 Cr.P.C. she has stated that she was raped by the applicant and one Vishal whose name has been disclosed by her. It is argued that charge-sheet was submitted by the police in which Vishal has been exonerated and as such the prosecution case becomes doubtful. It is further argued that the Chief Medical Officer has opined the age of the prosecutrix as 17 years and by giving variation of two years she would be a major. During investigation Sections 376 I.P.C. and 5/6 POCSO Act have been added. The applicant has no criminal history as stated in para 25 and is in jail since 06.10.2021. Per contra, learned counsel for the State vehemently opposed the prayer for bail and argued that the date of birth of the prosecutrix as per the school records is 10.08.2004 and as such she was a minor. It is argued that since there is date of birth recorded in the school records, the same would prevail over the opinion of the Chief Medical Officer. It is argued that there are allegations against the applicant and he is named in the first information report. After having heard the learned counsel for the parties and perusing the record, it is evident that the prosecutrix is a minor as per the school records. There are allegations of rape against the applicant. In so far as co-accused Vishal is concerned, he has been exonerated but the role of the applicant is consistent. Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected."

9. The ground as has been argued regarding the children of the applicant needing the guidance of the applicant is concerned the same cannot be looked into and bail cannot be granted to the applicant on the said ground only. No ground for bail is made out.

10. Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected."

12. The present third bail application is being pressed on the ground of delay in trial, further chances of trial being more delayed and the applicant has no criminal history. Insofar as the question of trial is concerned, five witnesses as per learned counsel for the applicant, have been examined. The first informant and the victim have been examined as P.W.-1 and P.W.-2 respectively who have supported the prosecution in full. The trial cannot be said to be stand still. The recording of statement of five witnesses goes to show that it is going on. In view of the same, no ground for bail exists at this stage.

13. Accordingly, the present bail application is rejected. (Samit Gopal,J.) Order Date :- 24.3.2025 Manoj MANOJ KUMAR YADAV High Court of Judicature at Allahabad

3. Notice was issued to the first informant vide order dated

12.11.2024 by this Court.

4. As per office report dated 07.01.2025, notice has been served on the first informant personally. Despite service of notice, no one appears on behalf of the first informant.

5. The present application under Section 439 Cr.P.C. has been filed by the applicant Sanjeev Kumar Dubey Alias Sanju Dubey with a prayer to release him on bail in Case Crime No. 191 of 2021, under Sections 363, 376 I.P.C. and Section 5/6 POCSO Act, registered at Police Station Sujanganj, District Jaunpur, during the pendency of trial.

6. This is the third bail application of the applicant. The first bail application of the applicant was rejected on merits by this Court vide order dated 26.04.2022 passed in Criminal Misc. Bail Application No.49895 of 2021 (Sanjay Kumar Dubey vs. State of U.P. and three others).

7. The second bail application of the applicant was also rejected on merits by this Court vide order dated 23.08.2023 passed in Criminal Misc. Bail Application No. 40089 of 2022 (Sanjeev Kumar Dubey Alias Sanju Dubey vs. State of U.P. and three others).

8. Learned counsel for the applicant has raised three submissions before this Court which are : (i) The period of detention by submitting that the applicant is in jail since 06.10.2021 and as such he has undergone about three years and five months in jail. (ii) The trial although in the present matter is going on but till date only five prosecution witnesses have been examined whereas as per the charge sheet, there are 17 prosecution witnesses and as such the trial will take time. (iii) The applicant is having no criminal antecedents as per paragraph 20 of the affidavit and as such he may be granted bail.

9. Per contra, learned counsel for the State vehemently opposed the prayer for bail and submitted that the first two bail applications of the applicant have been rejected by this Court on merits. It is submitted that the trial in the matter is going on and all the three witnesses including the victim who was examined as P.W. 2 have supported the prosecution case and role has been assigned to the applicant of committing rape upon the victim repeatedly for a period of five days. It is submitted that the victim at the time of incident was aged about 14 years.

10. After having heard learned counsels for the parties and perusing the records, it is evident that the first bail application of the applicant was rejected by this Court vide order dated

26.04.2022. The said order reads as under :- "Heard Sri Prabha Shanker Mishra, learned counsel for the applicant and Sri Ankit Srivastava, learned counsel for the State and perused the material on record. Vide order dated 25.11.2021, notice was issued to the first informant. As per the office report dated 20.12.2021, a report regarding service of notice has been received. The report dated 17.12.2021 of the Chief Judicial Magistrate, Jaunpur is on record which states that notice has been served on the first informant. Despite service of notice, no one appears on behalf of the first informant. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Sanjeev Kumar Dubey, seeking enlargement on bail during trial in connection with Case Crime No. 191 of 2021, under Sections 363, 376 I.P.C. & Section 5/6 POCSO Act, registered at Police Station Sujanganj, District Jaunpur. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the first information report was lodged under Section 363 I.P.C. by Smt Kiran Devi, the mother of the prosecutrix although naming the applicant as the person who had enticed her daughter but the same is false and incorrect. The prosecutrix in her statement recorded under Section 161 Cr.P.C. has stated that she went with the applicant out of her own sweet-will but subsequently in her statement recorded under Section 164 Cr.P.C. she has stated that she was raped by the applicant and one Vishal whose name has been disclosed by her. It is argued that charge-sheet was submitted by the police in which Vishal has been exonerated and as such the prosecution case becomes doubtful. It is further argued that the Chief Medical Officer has opined the age of the prosecutrix as 17 years and by giving variation of two years she would be a major. During investigation Sections 376 I.P.C. and 5/6 POCSO Act have been added. The applicant has no criminal history as stated in para 25 and is in jail since 06.10.2021. Per contra, learned counsel for the State vehemently opposed the prayer for bail and argued that the date of birth of the prosecutrix as per the school records is 10.08.2004 and as such she was a minor. It is argued that since there is date of birth recorded in the school records, the same would prevail over the opinion of the Chief Medical Officer. It is argued that there are allegations against the applicant and he is named in the first information report. After having heard the learned counsel for the parties and perusing the record, it is evident that the prosecutrix is a minor as per the school records. There are allegations of rape against the applicant. In so far as co-accused Vishal is concerned, he has been exonerated but the role of the applicant is consistent. Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected."

11. The second bail application of the applicant was also rejected by this Court vide order dated 23.08.2023. The said order reads as under :- "1. List revised.

2. Heard Sri Sunil Kumar, learned counsel for the applicant and Sri Sanjay Kumar Singh, learned counsel for the State and perused the material on record.

3. Notice was issued to the first informant vide order dated 29.11.2022. As per office report dated 10.01.2023, notice has been served personally on the first informant. Despite service of notice and the matter being taken up in the revised list no one appears on behalf of the first informant before the Court.

4. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Sanjeev Kumar Dubey @ Sanju Dubey, seeking enlargement on bail during trial in connection with Case Crime No. 191 of 2021, under sections 363, 376 I.P.C. and Section 5, 6 of the Protection of Children from Sexual Offences Act, 2012, Police Station Sujanganj, District Jaunpur.

5. This is second bail application. First bail application of the applicant was rejected vide order dated 26.04.2022 passed by this Court in Criminal Misc. Bail Application No. 49895 of 2021 (Sanjeev Kumar Dubey Versus State of U.P.).

6. Learned counsel for the applicant has raised the sole argument while placing paragraphs 4 and 5 of the supplementary dated 08.05.2023 that the applicant and his wife are blessed with two children aged about 9 years and 8 years who are studying in class 4 and 3, respectively, and have to suffer a lot as they are lacking the primary and basic guidance which ought to have been given by the father and in the absence of the guidance their childhood and future career is at stake and same is also being observed by the administration of the school in which they are studying. The copies of the Aadhar card of the children and their progress report have been filed as Annexure No. SA-1 and 2, respectively, to the affidavit which have been placed before the Court. It is argued that the applicant is in jail since 06.10.2021 and as such the bail application of the applicant be allowed and he may be directed to be released on bail.

7. Per contra learned counsel for the State vehemently opposed the prayer for bail and argued that the first bail application of the applicant has been rejected by this Court on merits. The victim is a minor girl as per the school record. The applicant is named in the F.I.R. and there are allegation against him in the statement of the victim recorded during investigation and as such the bail application of the applicant be rejected.

8. After hearing the counsel for the parties and perusing the record, it is evident that the first bail application of the applicant has been rejected vide order dated 26.04.2022 passed by this Court in Criminal Misc. Bail Application No. 49895 of 2021 (Sanjeev Kumar Dubey Versus State of U.P.). The said order reads thus: "Heard Sri Prabha Shanker Mishra, learned counsel for the applicant and Sri Ankit Srivastava, learned counsel for the State and perused the material on record. Vide order dated 25.11.2021, notice was issued to the first informant. As per the office report dated 20.12.2021, a report regarding service of notice has been received. The report dated 17.12.2021 of the Chief Judicial Magistrate, Jaunpur is on record which states that notice has been served on the first informant. Despite service of notice, no one appears on behalf of the first informant. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Sanjeev Kumar Dubey, seeking enlargement on bail during trial in connection with Case Crime No. 191 of 2021, under Sections 363, 376 I.P.C. & Section 5/6 POCSO Act, registered at Police Station Sujanganj, District Jaunpur. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the first information report was lodged under Section 363 I.P.C. by Smt Kiran Devi, the mother of the prosecutrix although naming the applicant as the person who had enticed her daughter but the same is false and incorrect. The prosecutrix in her statement recorded under Section 161 Cr.P.C. has stated that she went with the applicant out of her own sweet-will but subsequently in her statement recorded under Section 164 Cr.P.C. she has stated that she was raped by the applicant and one Vishal whose name has been disclosed by her. It is argued that charge-sheet was submitted by the police in which Vishal has been exonerated and as such the prosecution case becomes doubtful. It is further argued that the Chief Medical Officer has opined the age of the prosecutrix as 17 years and by giving variation of two years she would be a major. During investigation Sections 376 I.P.C. and 5/6 POCSO Act have been added. The applicant has no criminal history as stated in para 25 and is in jail since 06.10.2021. Per contra, learned counsel for the State vehemently opposed the prayer for bail and argued that the date of birth of the prosecutrix as per the school records is 10.08.2004 and as such she was a minor. It is argued that since there is date of birth recorded in the school records, the same would prevail over the opinion of the Chief Medical Officer. It is argued that there are allegations against the applicant and he is named in the first information report. After having heard the learned counsel for the parties and perusing the record, it is evident that the prosecutrix is a minor as per the school records. There are allegations of rape against the applicant. In so far as co-accused Vishal is concerned, he has been exonerated but the role of the applicant is consistent. Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected."

9. The ground as has been argued regarding the children of the applicant needing the guidance of the applicant is concerned the same cannot be looked into and bail cannot be granted to the applicant on the said ground only. No ground for bail is made out.

10. Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected."

12. The present third bail application is being pressed on the ground of delay in trial, further chances of trial being more delayed and the applicant has no criminal history. Insofar as the question of trial is concerned, five witnesses as per learned counsel for the applicant, have been examined. The first informant and the victim have been examined as P.W.-1 and P.W.-2 respectively who have supported the prosecution in full. The trial cannot be said to be stand still. The recording of statement of five witnesses goes to show that it is going on. In view of the same, no ground for bail exists at this stage.

13. Accordingly, the present bail application is rejected. (Samit Gopal,J.) Order Date :- 24.3.2025 Manoj MANOJ KUMAR YADAV High Court of Judicature at Allahabad