High Court
Case Details
Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50975 of 2021 Applicant :- Anil Pandey Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sanjai Kumar Pandey Counsel for Opposite Party :- G.A.
Legal Reasoning
Justice Act, 2015 in preferential order under Section 94 is the medico legal examination which certifies the age about 19 years. Victim thus is a mature girl, therefore, in view of the facts prima facie case of prosecution against Sections 363, 366 of I.P.C. seems not established at this stage. 8. Hon'ble the Supreme Court in para 21, 22 and 23 of the judgment given in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in [(2012 1 SCC 40)- (Spectrum Scam Case)], has laid down certain objects of bail under Section 437 & 439 of the Cr.P.C. which are as follows: guilty. "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson." 9. In Prahlad Singh Bhati Vs. NCT, Delhi and another - (2001 4 SCC 280), Hon'ble the Supreme Court has held some parameters for grant of bail, which are being quoted hereunder:- "8. The jurisdiction to grant bail has to be exercised on the basis of well- settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." 10. After hearing, learned counsel for the parties with a view to ensure personal liberty of the accused-applicant so as to provide opportunity to defend him efficaciously in the course of trial, if he is not in a position to flee away from the process of the Court and is ready to abide himself from the conditions imposed in the bail order. 11. Looking into the role, complicity of the accused-applicant in the offence, the prima facie case without making any comment as to the merit of the case, I find it to be a fit case for granting bail. 12. Let applicant (Anil Pandey) be released on bail in Case Crime No. No.143 of 2021, under Sections, 363, 366, 376 of the I.P.C. and Section 5/6 POCSO Act, registered at Police Station Itwa, District- Siddharth Nagar on his furnishing a personal bond of Rs.50,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:- (i) 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 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) 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. is issued and the 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 of the Indian Penal Code. (iv) 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 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. Order Date :- 21.2.2022 Gaurav Pal Digitally signed by GAURAV PAL Date: 2022.02.22 14:05:18 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Hon'ble Vikas Kunvar Srivastav,J. 1. The case is called out. 2. Heard learned counsel for the bail applicant, Sri Sanjay Kumar Pandey, Advocate and learned A.G.A. for the State, Sri Rishi Chaddha, Advocate and perused the record. 3. The present bail application is moved on behalf of accused- applicant, Sri Anil Pandey, involved in Case Crime No.143 of 2021, under Sections, 363, 366, 376 of the I.P.C. and Section 5/6 POCSO Act, registered at Police Station Itwa, District- Siddharth Nagar. 4. Learned counsel for the applicant impressed the fact arisen out of the F.I.R. and the statement recorded by the Investigating Officer and Statement recorded under Section 164 Cr.P.C. before the Magistrate. 5. Learned counsel for the applicant consensualy was in relation with the alleged victim of the case who is 19 years of age. Learned counsel for the applicant further submitted that she is consented party and is able to take decisions on her own. She consensualy left her father's home, undergone a marriage with the accused-applicant and then moved to Bombay to cohabit as husband and wife from where she called telephonically by her father and then the case was lodged against the present accused- applicant. The statement under Section 164 Cr.P.C. is available which reveals that victim herself left the house of father and accompanied the present accused-applicant, married with him and cohabit in Bombay. 6. Learned A.G.A. on the other hand protested the bail application on the basis of instructions received to him furnished the information that beyond the medico legal examination report there is nothing on record to show the authentic proof of age. The victim is not educated, the date of birth mentioned in the Pariwar Register is 1.1.2004 and the date of incident is 18.5.2021. 7. After hearing learned counsel for the applicant and learned A.G.A. it seems that only authentic proof under the Juvenile