Rakesh Chandan v. State of U.P. and another)

2. This is the third bail application of the applicant. The first bail application of the applicant being Criminal Misc. Bail No. 6450 of 2021 was rejected by this Court, vide order dated 14.7.2021. The said order reads as under :- "Heard Sri Hirdesh Kumar Yadav, learned counsel for the applicant and Sri S.B. Maurya, learned A.G.A. for the State and perused the material on record. Notice was issued to the opposite party No. 2 vide order dated 03.02.2021. As per the office report dated 18.03.2021, a report regarding service of notice has been received. The report dated 02.03.2021 of the Chief Judicial Magistrate, Chandauli, is on record which states that notice has been served on the legal heir of the opposite party No. 2. From perusal of the report of the Chief Judicial Magistrate, Chandauli and of the police station, it is apparent that the notice has been received by Kiran Kumari on behalf of the opposite party No. 2 who has stated herself to be the daughter of the opposite party No. 2. Notice is thus deemed sufficient. No one appears on behalf of the opposite party No. 2 even in the revised list. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Rakesh @ Chandan, seeking enlargement on bail during trial in connection with Case Crime No. 105 of 2020, under Sections 363, 366, 376, 504 I.P.C. and 3/4 POCSO (Protection of Children from Sexual Offences) Act, registered at Police Station Sakaldeeha, District Chandauli. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that although in the first information report the allegation is that the daughter of the first informant had gone to ease herself on 27.07.2020 at about 5:00 AM, wherein, the applicant took away her daughter and she is not traceable. It is argued that subsequently, in the statements of the victim recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C., she has stated that she went with the applicant out of her own sweet-will but in the statement recorded under Section 164 Cr.P.C., she has further added that the applicant committed rape on her whereas in the statement recorded under Section 161 Cr.P.C., the same fact was missing. It is further argued that the victim has stated that she went to various places, she solemnized marriage with the applicant and looking to the said statement, it is clear that while travelling at various places with the applicant there was no resistance by her. Learned counsel has further placed the medical examination report of the victim which is annexed as Annexure-8 to the affidavit and has argued that when the victim was taken for her medical examination, she has refused her internal medical examination which has been specifically noted by the doctor therein and as such, there is no corroboration regarding the version of rape as stated by her in her statement recorded under Section 164 Cr.P.C. It is further argued that the Investigating Officer has during investigation procured a certificate allegedly from a school by the Principal which is dated 06.08.2020, wherein, the date of birth of the victim has been mentioned as 11.07.2005 in which it is stated that she has passed class- 5th in the year 2016 but the original copy of the said document and even the other related documents have not seen the light of the day and as such, the certificate is suspect and is not reliable and credible. It is argued that in the absence of any relevant and credible evidence regarding the age of the victim, the victim is a major. The applicant is in jail since 06.08.2020. Per contra learned A.G.A vehemently opposed the prayer for bail. It is argued that the victim in her statement recorded under Section 164 Cr.P.C. has stated that the applicant committed rape upon her. It is further argued that as per the certificate collected by the Investigating Officer from the school from where she has passed class 5th, her date of birth has been mentioned as 11.07.2005 from which the age of the victim on the date of occurrence would be about 15 year and 15 days and as such, she is a minor. It is argued that since the victim is a minor, the consent of the victim is of no worth and the prayer for bail be rejected. After having heard learned counsel for the parties, it is apparent that there is an allegation of rape being committed upon the victim by the applicant. The applicant took a minor girl away and committed rape on her. The age as per the certificate of the Principal of the school is about 15 years and as such, the victim was a minor on the date of occurrence. 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. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. The computer generated copy of such order shall be self attested by the counsel of the party concerned. 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."

3. The second bail application of the applicant being Criminal Misc. Bail Application No. 5222 of 2022 was rejected by this Court, vide order 23.2.2023. The said order reads as under:- "List revised. Sri Vivek Mishra, learned counsel for the applicant, Sri Anshul Nigam, Panel counsel for High Court Legal Services Committee and Sri Sanjay Kumar Singh, learned AGA for the State are present. This is the second bail application which has been filed by the applicant Rakesh @ Chandan, seeking enlargement on bail during trial in connection with Case Crime No. 105 of 2020, under Sections 363, 366, 376, 504 IPC and Section 3/4 POCSO Act, registered at Police Station Sakaldeeha, District Chandauli. First bail application of the applicant was rejected by this Court vide order dated 14.07.2021 passed in Criminal Misc. Bail Application No. 6450 of 2021 (Rakesh @ Chandan Vs. State of U.P. and another). Learned counsel for the applicant argued that the victim was not willing for her medical examination as per the medical examination report and as such the corroboration of allegation of rape is missing. It is further argued while placing paragraph 9 to the affidavit in support of the application that as per the Parivar Register, the victim is shown to be born in the year 2002 and, as such, she was aged about 18 years at the time of incident. It is further argued while placing paragraph No. 18 to the affidavit that there is no likelihood of the trial being concluded in the near future as due to the outbreak of Corona Pandemic, the examination of witness is affected. Lastly, learned counsel for the applicant argued that the applicant is in jail since 06.08.2020. Per contra, learned Panel Counsel for High Court Legal Services Committee as well as learned counsel for the State vehemently opposed the prayer for bail and argued that no fresh and new ground has been pleaded and argued before the Court. It is further argued that order rejecting the first bail application of the applicant is an order on merit and in detail considering every aspect of the matter. It is argued that there is nothing on record to show that the trial would be delayed as the ground taken of Covid Pandemic is already over and the trial courts are functioning. It is argued that insofar as Parivar Register is concerned, the source of year of birth as shown therein is highly doubtful and cannot be relied upon and given preference over the age as mentioned in the school records. It is argued that as such the present application deserves to be dismissed. Having heard learned counsel for the parties and perusing the record, it is evident that this is the second bail application of the applicant. The first bail application of the applicant has been rejected on merit on 14.07.2021. There is no fresh and new ground taken in this application. The bail application thus stands dismissed."

4. Notice was issued to opposite party no. 2/first informant and opposite party no. 3/Child Welfare Committee, vide order dated

12.12.2024.

5. As per office report dated 16.01.2025 notice has been served personally on the first informant and through office of CWC.

6. Notice has been further served in the office of High Court Legal Services Committee, Allahabad as per the receiving dated

19.10.2023 on the bail application. Despite service of notice upon opposite party nos. 2, 3 and 4, no one appears on their behalf even in the revised call.

7. Sri Nagendra Bahadur Singh, learned counsel for the applicant and Sri Ajay Singh, learned A.G.A-I are present and have been heard and records perused.

8. Learned counsel for the applicant submits that the trial in the present matter has started, in which the first informant Meera Devi has been examined as PW1, whereas the victim/prosecutrix has been examined as PW2. Copies of the said statements have been placed before the Court, which are Annexure-6 & 7 to the affidavit. While placing the statement of the victim/PW2 it is submitted that she did not support the prosecution case in full and has exonerated the applicant after which she has been declared hostile by the trial court. It is further submitted that the implication of the applicant in the present case is false. The applicant has no criminal history as stated in para 28 of the affidavit and is in jail since 6.8.2020.

9. Per contra, learned counsel for the State opposed the prayer for bail and submitted that the victim is minor and during investigation she has supported the prosecution case. He further submits that the prayer for bail be rejected.

10. After having heard learned counsels for the parties and perusing the records, it is evident that this is the third bail application; the victim was examined as PW2 before the trial court and she has not supported the prosecution case and exonerated the applicant and she has been declared hostile by the trial court.

11. 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.

12. Let the applicant Rakesh @ Chandan, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties 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 84 B.N.S.S., 2023 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 209 B.N.S., 2023. (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 351 B.N.S.S.,

2023. 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 269 B.N.S., 2023. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

13. 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.

14. The bail application is allowed. Order Date :- 24.3.2025/Faridul (Samit Gopal, J.) FAREEDUL HASAN High Court of Judicature at Allahabad

2. This is the third bail application of the applicant. The first bail application of the applicant being Criminal Misc. Bail No. 6450 of 2021 was rejected by this Court, vide order dated 14.7.2021. The said order reads as under :- "Heard Sri Hirdesh Kumar Yadav, learned counsel for the applicant and Sri S.B. Maurya, learned A.G.A. for the State and perused the material on record. Notice was issued to the opposite party No. 2 vide order dated 03.02.2021. As per the office report dated 18.03.2021, a report regarding service of notice has been received. The report dated 02.03.2021 of the Chief Judicial Magistrate, Chandauli, is on record which states that notice has been served on the legal heir of the opposite party No. 2. From perusal of the report of the Chief Judicial Magistrate, Chandauli and of the police station, it is apparent that the notice has been received by Kiran Kumari on behalf of the opposite party No. 2 who has stated herself to be the daughter of the opposite party No. 2. Notice is thus deemed sufficient. No one appears on behalf of the opposite party No. 2 even in the revised list. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Rakesh @ Chandan, seeking enlargement on bail during trial in connection with Case Crime No. 105 of 2020, under Sections 363, 366, 376, 504 I.P.C. and 3/4 POCSO (Protection of Children from Sexual Offences) Act, registered at Police Station Sakaldeeha, District Chandauli. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that although in the first information report the allegation is that the daughter of the first informant had gone to ease herself on 27.07.2020 at about 5:00 AM, wherein, the applicant took away her daughter and she is not traceable. It is argued that subsequently, in the statements of the victim recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C., she has stated that she went with the applicant out of her own sweet-will but in the statement recorded under Section 164 Cr.P.C., she has further added that the applicant committed rape on her whereas in the statement recorded under Section 161 Cr.P.C., the same fact was missing. It is further argued that the victim has stated that she went to various places, she solemnized marriage with the applicant and looking to the said statement, it is clear that while travelling at various places with the applicant there was no resistance by her. Learned counsel has further placed the medical examination report of the victim which is annexed as Annexure-8 to the affidavit and has argued that when the victim was taken for her medical examination, she has refused her internal medical examination which has been specifically noted by the doctor therein and as such, there is no corroboration regarding the version of rape as stated by her in her statement recorded under Section 164 Cr.P.C. It is further argued that the Investigating Officer has during investigation procured a certificate allegedly from a school by the Principal which is dated 06.08.2020, wherein, the date of birth of the victim has been mentioned as 11.07.2005 in which it is stated that she has passed class- 5th in the year 2016 but the original copy of the said document and even the other related documents have not seen the light of the day and as such, the certificate is suspect and is not reliable and credible. It is argued that in the absence of any relevant and credible evidence regarding the age of the victim, the victim is a major. The applicant is in jail since 06.08.2020. Per contra learned A.G.A vehemently opposed the prayer for bail. It is argued that the victim in her statement recorded under Section 164 Cr.P.C. has stated that the applicant committed rape upon her. It is further argued that as per the certificate collected by the Investigating Officer from the school from where she has passed class 5th, her date of birth has been mentioned as 11.07.2005 from which the age of the victim on the date of occurrence would be about 15 year and 15 days and as such, she is a minor. It is argued that since the victim is a minor, the consent of the victim is of no worth and the prayer for bail be rejected. After having heard learned counsel for the parties, it is apparent that there is an allegation of rape being committed upon the victim by the applicant. The applicant took a minor girl away and committed rape on her. The age as per the certificate of the Principal of the school is about 15 years and as such, the victim was a minor on the date of occurrence. 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. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. The computer generated copy of such order shall be self attested by the counsel of the party concerned. 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."

3. The second bail application of the applicant being Criminal Misc. Bail Application No. 5222 of 2022 was rejected by this Court, vide order 23.2.2023. The said order reads as under:- "List revised. Sri Vivek Mishra, learned counsel for the applicant, Sri Anshul Nigam, Panel counsel for High Court Legal Services Committee and Sri Sanjay Kumar Singh, learned AGA for the State are present. This is the second bail application which has been filed by the applicant Rakesh @ Chandan, seeking enlargement on bail during trial in connection with Case Crime No. 105 of 2020, under Sections 363, 366, 376, 504 IPC and Section 3/4 POCSO Act, registered at Police Station Sakaldeeha, District Chandauli. First bail application of the applicant was rejected by this Court vide order dated 14.07.2021 passed in Criminal Misc. Bail Application No. 6450 of 2021 (Rakesh @ Chandan Vs. State of U.P. and another). Learned counsel for the applicant argued that the victim was not willing for her medical examination as per the medical examination report and as such the corroboration of allegation of rape is missing. It is further argued while placing paragraph 9 to the affidavit in support of the application that as per the Parivar Register, the victim is shown to be born in the year 2002 and, as such, she was aged about 18 years at the time of incident. It is further argued while placing paragraph No. 18 to the affidavit that there is no likelihood of the trial being concluded in the near future as due to the outbreak of Corona Pandemic, the examination of witness is affected. Lastly, learned counsel for the applicant argued that the applicant is in jail since 06.08.2020. Per contra, learned Panel Counsel for High Court Legal Services Committee as well as learned counsel for the State vehemently opposed the prayer for bail and argued that no fresh and new ground has been pleaded and argued before the Court. It is further argued that order rejecting the first bail application of the applicant is an order on merit and in detail considering every aspect of the matter. It is argued that there is nothing on record to show that the trial would be delayed as the ground taken of Covid Pandemic is already over and the trial courts are functioning. It is argued that insofar as Parivar Register is concerned, the source of year of birth as shown therein is highly doubtful and cannot be relied upon and given preference over the age as mentioned in the school records. It is argued that as such the present application deserves to be dismissed. Having heard learned counsel for the parties and perusing the record, it is evident that this is the second bail application of the applicant. The first bail application of the applicant has been rejected on merit on 14.07.2021. There is no fresh and new ground taken in this application. The bail application thus stands dismissed."

4. Notice was issued to opposite party no. 2/first informant and opposite party no. 3/Child Welfare Committee, vide order dated

12.12.2024.

5. As per office report dated 16.01.2025 notice has been served personally on the first informant and through office of CWC.

6. Notice has been further served in the office of High Court Legal Services Committee, Allahabad as per the receiving dated

19.10.2023 on the bail application. Despite service of notice upon opposite party nos. 2, 3 and 4, no one appears on their behalf even in the revised call.

7. Sri Nagendra Bahadur Singh, learned counsel for the applicant and Sri Ajay Singh, learned A.G.A-I are present and have been heard and records perused.

8. Learned counsel for the applicant submits that the trial in the present matter has started, in which the first informant Meera Devi has been examined as PW1, whereas the victim/prosecutrix has been examined as PW2. Copies of the said statements have been placed before the Court, which are Annexure-6 & 7 to the affidavit. While placing the statement of the victim/PW2 it is submitted that she did not support the prosecution case in full and has exonerated the applicant after which she has been declared hostile by the trial court. It is further submitted that the implication of the applicant in the present case is false. The applicant has no criminal history as stated in para 28 of the affidavit and is in jail since 6.8.2020.

9. Per contra, learned counsel for the State opposed the prayer for bail and submitted that the victim is minor and during investigation she has supported the prosecution case. He further submits that the prayer for bail be rejected.

10. After having heard learned counsels for the parties and perusing the records, it is evident that this is the third bail application; the victim was examined as PW2 before the trial court and she has not supported the prosecution case and exonerated the applicant and she has been declared hostile by the trial court.

11. 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.

12. Let the applicant Rakesh @ Chandan, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties 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 84 B.N.S.S., 2023 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 209 B.N.S., 2023. (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 351 B.N.S.S.,

2023. 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 269 B.N.S., 2023. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

13. 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.

14. The bail application is allowed. Order Date :- 24.3.2025/Faridul (Samit Gopal, J.) FAREEDUL HASAN High Court of Judicature at Allahabad