High Court
Case Details
Neutral Citation No. - 2025:AHC:107189 Court No. - 80 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21363 of 2025 Applicant :- Chhotu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Abhishek Srivastava,Ajay Nand Pandey Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Ajay Nand Pandey, the learned counsel for applicant and the learned A.G.A. for State-opposite paty-1. 2. Perused the record. 3. On the matter being taken up, Mr. Chandra Bhushan Prasad, Advocate has filed his parchs on behalf of applicant in Court today, which is taken on record. 4. At the very outset, the learned counsel for applicant submits that there is a typographical error in the prayer clause of this application. He therefore seeks permission of the Court to correct the prayer clause of this application.
Legal Reasoning
5. Prayer made by the learned counsel for applicants is bonafide. Same is not opposed by the learned A.G.A. Accordingly, it is allowed. 6. Let necessary correction in the prayer clause of present application be carried out by the learned counsel for applicant during course of the day. 7. This repeat application for bail has been filed by applicant- Chhotu seeking his enlargement on bail in Case Crime No. 583 of 2023 under Section 376 (AB) I.P.C. and Section 5M/6 of the POCSO Act, Police Station-Kotwali Nagar, District-Muzaffarnagar during the pendency of trial i.e. Special Sessions Trial No. 2449 of 2023 (State Vs. Chhotu) under Section 583 of 2023, under Section 376 (AB) I.P.C. and Section 5M/6 of the POCSO Act, Police Station-Kotwali Nagar, District-Muzaffarnagar now pending in the Court of Additional District and Sessions Judge/Special Judge (POCSO Act), Muzaffarnagar. 8. At the very outset, the learned A.G.A. submits that notice of present repeat application for bail has been served upon first informant/opposite party-2 on 17.06.2025. However, in spite of service on notice, neither any counter affidavit has been filed on behalf of first informant/opposite party-2 nor anyone has put in appearance on his behalf to oppose this repeat application for bail even in revised call. 9. The first bail application of applicant was rejected by this Court by a short but crisp order dated 19.12.2023 passed in Criminal Misc. Bail Application No. 52361 of 2023 (Chotu Vs. State of U.P. and 3 Others). For ready reference, the order dated 18.12.2023 is reproduced herein-under: "Heard Mr. Dipendra Kumar, the learned counsel for applicant and the learned A.G.A. for State. Perused the record. This bail application has been filed by applicant Chotu seeking his enlargement on bail in Case Crime No. 583 of 2023, under Sections 376AB I.P.C. and Sections 5M/6 POCSO Act, P.S. Kotwali Nagar, District Muzaffarnagar, during the pendency of trial. Learned A.G.A. submits that notice of present application for bail has been served upon first informant opposite party 2. However, in spite of service of notice, no one has put in appearance on behalf of opposite party 2 to oppose this application for bail. At the very outset learned A.G.A. contends that the prosecutrix is a child aged about 4 years. As per her date of birth recorded in the birth certificate the date of birth of the prosecutrix recorded therein is 02.09.2019. The statements of the prosecutrix recorded under Sections 161/164 Cr.P.C. clearly establish the criminality committed by the applicant. Considering the tender age of the prosecutrix and also the fact that there can be no motive to falsely implicate the applicant by the prosecutrix, therefore, applicant does not deserve any sympathy by this Court. Moreover, charge sheet has already been submitted against applicant on 12.10.2023. When confronted with above, the learned counsel for applicant could not overcome the same. A fragile attempt was made to show the innocence of applicant. Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the prosecutrix is a child aged about 4 years, as per her date of birth recorded in the birth certificate which is 02.09.2019, the statements of the prosecutrix recorded under Sections 161/164 Cr.P.C. clearly establish the criminality committed by the applicant, considering the tender age of the prosecutrix and also the fact that there can be no motive to falsely implicate the applicant by the prosecutrix, the charge sheet has already been submitted against applicant on 12.10.2023, therefore irrespective of the submissions urged by the learned counsel for applicant, but without making any comments on the merits of the case, this Court does not find any good or sufficient ground to enlarge the applicant on bail. As a result, the bail application fails and is liable to be rejected. It is, accordingly, rejected. Order Date :- 19.12.2023 " 10. Learned counsel for applicant submits that applicant is a named and charge sheeted accused and facing trial before court below yet in view of the facts that have now emerged on record, the applicant is liable to be enlarged on bail. It is then contended by the learned counsel for applicant that subsequent to the order dated 19.12.2023 referred to above passed by this Court, the trial of applicant commenced before court below. Upto this stage, four prosecution witnesses have deposed before court below. The details of the same are as under: i. P.W.-1 is the mother of the prosecutrix. ii. P.W.-2 is the father of the prosecutrix. iii. P.W.-3 is the prosecutrix herself. iv. P.W.-4 is the uncle of the prosecutrix. 11. It is further contended by the learned counsel for applicant that since the statement of P.W.-1, the first informant and P.W.-3, the prosecutrix have already been recorded before court below therefore in case the applicant is enlarged on bail then in that eventuality it cannot be said that he shall either terrorize the witnesses or shall hamper the course of trial. He therefore submits that in view of above, no justifiable ground now exists to prolong the custodial arrest of applicant during the pendency of trial. It is then contended by the learned counsel for applicant that four prosecution witnesses, who have deposed before court below, have been declared hostile. As such, upto this stage, no adverse circumstance has emerged against applicant on record. It is also contended by the learned counsel for applicant that since the first informant and the prosecutrix themselves have not supported the prosecution story as unfolded in the F.I.R., therefore, the custodial arrest of applicant is liable to be terminated. 12. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in custody since 24.09.2023. As such, he has undergone more than one year and nine months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted by the Investigating Officer against applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such incriminating circumstance has emerged on the record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, it is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail during the pendency of trial. 13.. Per contra, the learned A.G.A. for State has vehemently opposed this repeat application for bail. He submits that since applicant is a named and charge sheeted accused, therefore, he does deserve any indulgence by this Court. It is further contended by the learned A.G.A. that considering the totality of the facts and circumstances of the case and also the fact that the prosecutrix was a young and innocent girl less than 18 years of age on the date of occurrence, the innocence of applicant cannot be presumed. As per the facts has have now emerged on record, dictates of prudence require that the liberty of applicant remain curtailed till the conclusion of the trial.However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage. 14. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, nature and gravity of offence, accusations made as well as complicity of applicant this court finds that applicant is a named and charge sheeted accused, the first bail application of applicant was rejected by this court vide order dated 19.12.2023, applicant is under incarceration since 24.09.2023, as such he has undergone more then one year and nine months of incarceration, the clean antecedents of applicant inasmuch as he has no criminal history to his credit except the present one, upto this stage four prosecution witnesses of fact as detailed above have already deposed before court below, however, the prosecution witnesses of fact, who have deposed before court below upto this stage have not supported the prosecution story as unfolded in the F.I.R., the depositions of P.W.- 1 first informant and P.W.3, the prosecutrix stand recorded before court below, therefore, in case the applicant is enlarged on bail then in that eventuality it cannot be said that applicant shall either terrorize the witnesses or shall hamper the course of trial, in view of above and coupled with the fact the police report (charge sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalised, yet in spite of above, the learned A.G.A. could not point out any such incriminating circumstance from record warranting the custodail arrest of applicant during the pendency of trial, the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 6), therefore, irrespective of the objections raised by learned A.G.A. in opposition to this repeat application for bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail. 15. In view of the discussion made above, the present repeat application for bail succeeds and is liable to be allowed. 16. It is accordingly is allowed. 17. Let the applicant-Chhotu involved in aforesaid case crime number be released on bail on his 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. 18. 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 :- 8.7.2025 YK Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad