High Court
Case Details
Court No. - 73 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52516 of 2021 Applicant :- Rahul Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Pushpendra Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Pushpendra Singh, learned counsel for applicant and learned A.G.A. for State, who are virtually connected. 2. Perused the record. 3. Instant bail application has been filed by applicant-Rahul seeking his enlargement on bail in Case Crime No.0386 of 2019 under Sections 363, 376-D I.P.C. and Section4 POCSO Act, 2012, Police Station-Jahangirabad, District-Bulandshahr, during pendency of trial. 4. Record shows that in respect of an incident, which is alleged to have occurred on 21.08.2019, a delayed F.I.R. dated
Legal Reasoning
23.08.2019, was lodged by first informant-Prakash Singh (Father of the prosecutrix) and was registered as Case Crime No.0386 of 2019 under Sections 363 I.P.C, Police Station- Jahangirabad, District-Bulandshahr. In the aforesaid F. I.R., five person namely Akshay @ Bhola, Rahul, Balveer, Aakash and Alok have been nominated as named accused. 5. In brief, prosecution story as unfolded in the F.I.R. is to the effect that on 21.08.2019 at around 7.30 AM, the minor daughter of first informant namely Shilpi, aged about 16 years went to her School i.e. Nalanda Public School but she did not return home from School. Accordingly, first informant went to School to enquire about the whereabouts of his minor daughter. It was then gathered that his daughter had not reached the School. On further enquiry, it was revealed that named accused took away the daughter of first informant in a car from the bus stand. 6. Subsequent, to aforesaid F.I.R. dated 21.08.2019, prosecutrix was recovered on 28.09.2019. Thereafter, her statement under Section 161 Cr.P.C. was recorded by Investigating Officer. This was followed by her statement under Section 164 Cr.P.C. Prosecutrix, however, refused her medical examination. 7. Investigating Officer upon completion of the statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C. has submitted a charge-sheet dated 21.10.2019 whereby only one of the named accused namely Akshay @ Bhola has been charge-sheeted under Sections 363, 376 I.P.C. and Section 4 POCSO Act. After submission of aforesaid charge-sheet, cognizance was taken upon same by court concerned. Resultantly, Special Case No. 4656 of 2019 (State Vs. Akshay @ Bhola) under Sections 376, 363 I.P.C. and Section 4 POCSO Act, P.S.-Jahangirabad, Distrist, Buland Shahr came to be registered. Subsequently, prosecution filed an application under Section 319 Cr.P.C. to summon applicant Rahul and Aakash. Aforesaid application was allowed by court below vide order dated 03.03.2021. Thus, applicant has also been summoned by court below in afore-mentioned special case.
Legal Reasoning
8. Learned counsel for applicant contends that though applicant is named accused in the F.I.R. dated 21.08.2019 but he is innocent. Allegations made in the F.I.R. are false and concocted. Applicant is being falsely prosecuted. Applicant is in jail since 24.10.2021, as such, he has undergone three months of incarceration. Applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. It is then contended that named and charge-sheeted accused Akshay @ Bhola has already been enlarged on bail by this Court vide order dated 17.01.2020 passed in Criminal Misc. Bail Application No. 999 of 2020 (Akshay @ Bhola Vs. State of U.P.). For ready reference, order dated 17.01.2020 is reproduced herein-under: "Counter affidavit filed by counsel for the informant filed is taken on record. Heard learned counsel for the applicant, learned counsel for the informant and learned A.G.A. for the State and perused the record. The submission is that it is a case of false implication. The victim initially implicated the applicant along with his real brother, Rahul, father and two friends of the applicant, Akash and Alok. The police has investigated the case and has exonerated all the accuseds except the applicant. The applicant has been implicated in this case. The age of the victim as per medical report is 18-19 years. From the statement of victim under Section 164 Cr.P.C it appears that the victim was staying at a hotel in Delhi with the applicant and only after the first information report was lodged the applicant and the victim were taken back. The brother of the applicant, Banarasi, took the victim and the applicant from Delhi. She has admitted that at that time the co-accuseds, Akshay and Rahul, were not present. It has been submitted that they have been implicated only because they were brother and friends of the applicant in this case and on account of ulterior motives. The victim had not levelled any allegation against the applicant in her statement under Section 161 Cr.P.C. The applicant is in jail since 28.08.2019 and has no criminal history to his credit. Per contra Sri Kuldeep Kumar, counsel for the informant and learned A.G.A have vehemently opposed the bail application on the ground as per the high school certificate. The age of the victim is 17 years 4 months and therefore the victim is a minor and the applicant cannot be given any benefit of her consent. After considering the rival submissions this court finds that as per medical report victim is aged about 16-17 years. Given margin of one year on the higher side she can be considered to be major. However there is difference of age in her educational certificate. The Apex Court in the case of Suhani & another vs. State of U.P. & others, 2018 LawSuit (SC) 1364 has accepted that medical report is more reliable as compared to the educational certificate. Even otherwise the question of genuineness of the high school certificate and the medical certificate shall be examined by the trial court during the trial. � � After considering the rival submissions noted hereinabove, larger mandate of Article 21 of the Constitution of India and the material brought on record and without expressing any opinion on the merits of the case and considering the facts and circumstances of the case, I am of the opinion that the applicant is entitled to be released on bail. Let the applicant- Akshay @ Bhola, be released on bail in Case Crime No. 386 of 2019, under Sections- 363, 376 IPC and Section 4 of POCSO Act, Police Station- Jahangirabad, District- Bulandshahar, be released on bail on his furnishing a personal bond with 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 :- 1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial. 2. The applicant shall cooperate in the trial sincerely without seeking any adjournment. 3. 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 Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. " bail. of 9. On the aforesaid premise, the learned counsel for applicant contends that case of present applicant is on better footing than named/charge-sheeted co-accused Akshay @ Bhola, who has already been enlarged on bail by this Court. As such, applicant is also liable to be enlarged on bail. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co- operate with the trial. 10. Per contra, the learned A.G.A. for State has opposed present bail application. 12. Having heard learned counsel for applicant, learned A.G.A. for State, considering facts and reasons as noted in order dated 17.01.2020 and upon consideration of evidence on record, accusation made as well as complicity of applicant but without expressing any opinion on the merits of the case, applicant has made out a case for bail. 11. Accordingly, bail application of applicant is allowed. 12. Let the applicant-Rahul involved in aforesaid case crime number be released on bail 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) Applicant will not tamper with prosecution evidence. (ii) 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) Applicant will not indulge in any unlawful activities. (iv) Applicant will not misuse the liberty of bail in any manner whatsoever. 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 of applicant and send him to prison. Order Date :- 28.1.2022 YK