High Court
Case Details
Court No. - 50 Case :- CRIMINAL APPEAL No. - 7531 of 2022 Appellant :- Deepak Nishad @ Brajesh Respondent :- State of U.P. and Another Counsel for Appellant :- Arun Kumar Singh Counsel for Respondent :- G.A. Hon'ble Ram Manohar Narayan Mishra,J. Order on Bail Application.
Legal Reasoning
Heard learned counsel for the appellant Shri Arun Kumar Singh and learned A.G.A. for the State. Learned A.G.A. for the State informed that notice has been served on respondent No.2, however, none appeared on behalf of respondent No.2 and no counter affidavit has been filed. Instant criminal appeal has been preferred against order dated 12.01.2022 passed by learned Special Judge SC/ST Act, Kanpur Nagar in Criminal Misc. Bail Application No. 4551 of 2021 arising out of Case Crime No. 565 of 2021 under Sections 363, 366 of I.P.C and under Section 3(2)(V) of SC/ST P.A. Act, P.S.- Chakeri, District Kanpur Nagar. By impugned order learned Court below rejected bail application of the accused appellant on merits. Learned counsel for the appellant submitted that the F.I.R. in present case was lodged at the instance of Smt. Umakanti Chamar wife of Yogender Kumar, mother of the alleged victim with effect that the accused Deepak Nishad @ Brajesh had kidnapped her minor daughter aged around 16 years on 15.06.2021 by enticing her, from legal guardianship of her parents and she could not be traced till filing of F.I.R. i.e. till 24.06.2021. He further submitted that as per prosecution version, victim was recovered and accused was arrested on 26.06.2021 during investigation. The date of birth of the victim is mentioned as 15.09.2005 in her High-School Mark-sheet accordingly, she was of 15 years 9 months of age at the time of incident. However, in her birth certificate issued by Cantonment Board, Kanpur, her date of birth is mentioned as 15.09.2002 and accordingly, she had attained the age of majority on the date of incident. He further submitted that the victim has levelled no allegations against the accused appellant in her statement under Section 161 Cr.P.C. before police as well as in her statement recorded under Section 164 Cr.P.C. She has stated in her statement that accused was residing as tenant in her house since 2013 and both of them liked each other. On 02.06.2021 her father who is, in fact, her step-father had tried to commit rape on her and she had made a video of the incident and sent it to her friend Anshika and dialled 112 to inform the police about the same, however, due to intervention of her mother a compromise took place between her and her father and thereafter, she left her place with the accused out of her free will on 03.06.2021 and remained with him till 07.06.2021. She also solemnized marriage with him on 07.06.2021 at Arya Samaj Temple and she intends to reside with him as he has not done anything wrong with her and they are not having physical relationship. She has left her home due to harassment of her family members. He lastly submitted that the victim declined to get herself medically examined after her recovery on 25.06.2021 as reflects from her medical examination report. She had also declined to provide any sample of her person. Learned Court below has wrongly rejected bail application of the accused without considering the material on record in proper perspective and submissions of the accused/appellant, only due to solitary fact that as per school certificate, she was found below 18 years of age. He lastly submitted that, the accused is held in jail custody since 26.06.2021. Per contra, learned A.G.A. opposed prayer for bail made in present criminal appeal and submitted that the victim was around 16 years of age, according to her High School Certificate at the time of incident and thus, minor and an alleged offence under Section 363 I.P.C. is made out in the case. Therefore, there is no infirmity in impugned order passed by learned Court below, however, he did not dispute the statement of the victim recorded under Sections 161 and 164 Cr.P.C. in which she has not levelled any allegations against the appellant. He further submitted that the birth certificate issued by Cantonment Board, Kanpur on which reliance has been placed by appellant does not contain the name of the victim, however, it is mentioned therein that the same is issued in respect of a girl child who was born on 15.09.2002 and name of her parents Smt. Umakanti and Yogender Kumar are mentioned. Considering rival submissions of the parties, nature of offence, complicity of accused and the fact that as per date of birth mentioned in her Municipal Certificate, she appears to be major and she has not raised any allegations against appellant in her statement recorded under Sections 161 and 164 Cr.P.C. during investigation, without expressing any opinion on merits of the case, in my considered opinion, a case of bail is made out and
Decision
consequently, the appeal is allowed and the impugned order passed by learned Court below is set aside. Let the appellant-Deepak Nishad @ Brajesh be released on bail on their furnishing personal bonds with two sureties each in the like amount to the satisfaction of the Court concerned with following conditions:- (i) That the appellant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable. (ii) That the appellant 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. (iii) That after his release, the appellant shall not involve in any criminal activity. (iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the appellant on bail. It is made clear that in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the appellant. It is also 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. On acceptance of bail bonds and personal bonds, the lower court shall transmit Photostat copies thereof to this Court for being kept on the record. Order on Appeal List this appeal in due course. Order Date :- 15.3.2023 Nitika Digitally signed by :- NITIKA SRIVASTAVA High Court of Judicature at Allahabad