State of U.P v. Uzaif Waris Khan) under Sections

present repeat application for bail has been served upon first informant/opposite party-2 on 30.07.2024. However, in spite of service of notice, neither any counter affidavit has been filed by informant/opposite party-2 nor anyone has put in appearance on his behalf to oppose this repeat application for bail.

5. The first bail application of applicant was rejected by this Court by a detailed order dated 30.10.2023 passed in Criminal Misc. Bail Application No. 42125 of 2023 (Uzaif Waris Khan Vs. State of U.P. and 3 Others). For ready reference, the order dated

30.10.2023 is reproduced herein-under: "Heard Mr. Sharique Ahmed, the learned counsel for applicant, the learned A.G.A. for State and Ms. Aarushi Khare, the learned counsel for opposite party-3 (High Court Legal Service Committee, High Court, Allahabad). This application for bail has been filed by applicant Uzaif Waris Khan seeking his enlargement on bail in Case Crime No.381 of 2023, under Sections 363, 366, 376 IPC and Section 3/4 Pocso Act, police station Naubasta, district Kanpur Nagr, during the pendency of trial. Perused the record. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant-opposite party-2 on 03.10.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party-2 to oppose this application for bail. Record shows that in respect of an incident which is alleged to have occurred on 15.07.2023 a delayed first information report dated 16.07.2023 was lodged by first informant, namely, Ajay Rajpoot (father of the prosecutrix) and was registered as Case Crime No.0381 of 2023, under Sections 363, 366 IPC, police station Naubasta, district South (Commissionerate Kanpur Nagar). In the aforesaid F.I.R., applicant Uzaif Waris Khan has been nominated as solitary named accused. The gravamen of the allegations made in the first information report is to the effect that named accused Uzaif Waris Khan enticed away the daughter of the first informant i.e. prosecutrix aged about 17 years. After aforementioned first information report was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. The prosecutrix was recovered on 16.07.2023. The statement of the prosecutrix was recorded under Section 161 CrPC, which is on record at page 34 of the paper book. The prosecutrix in her aforesaid statement has not supported the FIR. To the contrary, the prosecutrix has stated that she herself went to the applicant on the message sent by the applicant. Thereafter, the prosecutrix was requested for her internal medical examination but the same was refused by her. Ultimately, the statement of the prosecutrix was recorded under Section 164 CrPC, which is on record at page 42 of the paper book. The prosecutrix in her aforesaid statement has rejoined her previous statement under Section 161 CrPC. Investigating Officer on the basis of above and other material collected by him during the course of investigation came to the conclusion that complicity of applicant is fully established in the crime in question. He, accordingly, submitted the charge-sheet dated 28.08.2023, whereby applicant has been charge-sheeted under Sections 363, 366, 376 IPC and Section 3/4 Pocso Act. Learned counsel for the applicant contends that though the applicant is a named as well as charge-sheeted accused yet he is liable to be enlarged on bail. The prosecutrix in her statements recorded under Section 161/164 CrPC has not supported the FIR. The prosecutrix and the applicant were in love with each other for the last one year as is clearly explicit from her statement under Section 161 CrPC. Therefore, she is a willing and consenting party. As such, no offence as complained of can be said to have been committed by the applicant. On the above premise, the learned counsel for applicant submits that applicant is liable to be enlarged on bail. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. The applicant is in jail since 17.07.2023. As such, he has undergone more than three months of incarceration. The police report in terms of Section 173 (2) CrPC has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. It is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the investigation/trial. Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since the applicant is a named as well as charge-sheeted accused therefore, he does not deserve any indulgence by this court. He submits that as per the High School Certificate, the date of birth of the prosecutrix is 16.10.2005. The occurrence giving rise to present criminal proceeding is alleged to have occurred on 15.07.2023. As such, the prosecutrix is aged about 17 years 08 months and 13 days on the date of occurrence therefore, she is covered within the definition of 'child' under the Pocso Act. Since the prosecutrix is minor and below 18 years of age therefore her consent, if any, is wholly immaterial. On the above premise, he contends that no sympathy be shown by this Court in favour of applicant. When confronted with above, the learned counsel for applicant could not overcome the same. 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, coupled with the fact that the prosecutrix is a small girl aged below 18 years of age therefore her consent, if any, is wholly immaterial therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of the present application for bail, this Court does not find any good or sufficient ground to enlarge the applicant on bail. This application for bail thus fails and is liable to be rejected. It is accordingly rejected. Order Date :- 30.10.2023. "

6. Learned counsel for applicant contends that though the applicant is a named and charge sheeted accused and facing trial before court below by way of aforementioned special sessions trial yet he is liable to be enlarged on bail. In furtherance of aforesaid submission, the learned counsel for applicant contends that applicant is in jail since 17.07.2023. As such, he has undergone more than one year and six months of incarceration. It is then contended by the learned counsel for applicant that as per the mandate of Section 35 (2) of the POCSO Act, the statement of the prosecutrix should be recorded within a period of 30 days from the date of taking cognizance. However, in the present case, the statement of the prosecutrix was recorded on 18.12.2024 i.e. after more than one year and five months. No explanation regarding above has come forward from the prosecutrix regarding non- compliance of Section 35 (2) of the POCSO Act for such a long period. It is lastly contended by the learned counsel for applicant that since the statement of the prosecutrix has already been 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. As such, no good ground now exists to prolong the custodial arrest of applicant.

7. It is further contended by the learned counsel for applicant that the prosecutrix in her deposition before court blow has clearly stated that her modesty was not dislodged by applicant on

15.07.2023. As such, the applicant is liable to be enlarged on bail.

8. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. 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 crystallised. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

9. Per contra, the learned A.G.A. for State-opposite party-1 and the learned counsel representing first informant/opposite party-2 have vehemently opposed this repeat application for bail. They submit that since applicant is a named and charge sheeted accused, therefore, he does deserve any indulgence by this Court. Considering the nature and gravity of offence and also the period of punishment provided for the offence complained of, no interference is warranted by this Court. In view of above, the period of incarceration undergone by applicant is by itself not so sufficient a circumstance so as to enlarge the applicant on bail. It is then contended by the learned A.G.A. and the learned counsel representing first informant/opposite party-2 that Section 35 (2) of the POCSO Act only directs that statement of the victim/child should be recorded within a period of 30 days from the date of taking cognizance. However, Section 35 (2) of the POCSO Act is not embedded with a non-obstante clause that in case the statement of the victim/child is not recorded within 30 days from the date of taking cognizance, an accused shall be liable to be enlarged on bail. According to learned A.G.A. the prosecutrix in her deposition before court below has supported the F.I.R. Consequently, she has not been declared hostile. According to the learned A.G.A. even though, this court is a superior court, dictates of prudence require that this court should not evaluate the evidence which has emerged on record as any such exercise undertaken by this court with regard to quality and nature of offence, which has emerged before the trial court, may affect the prosecution or the defence. The import of the testimony of the witnesses, who have deposed before court below, should be left to be evaluated by the trial court itself. On the above premise, the learned A.G.A. submits that no new, good or sufficient ground has emerged so as to enlarge the applicant on bail.

10. When confronted with above, the learned counsel for applicant has rejoined the submissions urged by him in support of this repeat application for bail. However, he could not dislodged the factual and legal submissions urged by the learned A.G.A. in opposition to this repeat application for bail.

11. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant/opposite party-2, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant and coupled with the fact that objections raised by the learned A.G.A. in opposition to this repeat application for bail as noted herein above are not only borne out from the record but furthermore, the same could not be dislodged by the learned counsel for applicant with reference to the record, therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of present repeat application for bail but without making any comment on the merits of the case, this court does not find any new, good or sufficient ground so as to enlarge the applicant on bail.

12. As a result, present repeat application for bail fails and is liable to be rejected.

13. It is accordingly rejected. Order Date :- 7.2.2025 YK YASHWANT KUMAR High Court of Judicature at Allahabad

present repeat application for bail has been served upon first informant/opposite party-2 on 30.07.2024. However, in spite of service of notice, neither any counter affidavit has been filed by informant/opposite party-2 nor anyone has put in appearance on his behalf to oppose this repeat application for bail.

5. The first bail application of applicant was rejected by this Court by a detailed order dated 30.10.2023 passed in Criminal Misc. Bail Application No. 42125 of 2023 (Uzaif Waris Khan Vs. State of U.P. and 3 Others). For ready reference, the order dated

30.10.2023 is reproduced herein-under: "Heard Mr. Sharique Ahmed, the learned counsel for applicant, the learned A.G.A. for State and Ms. Aarushi Khare, the learned counsel for opposite party-3 (High Court Legal Service Committee, High Court, Allahabad). This application for bail has been filed by applicant Uzaif Waris Khan seeking his enlargement on bail in Case Crime No.381 of 2023, under Sections 363, 366, 376 IPC and Section 3/4 Pocso Act, police station Naubasta, district Kanpur Nagr, during the pendency of trial. Perused the record. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant-opposite party-2 on 03.10.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party-2 to oppose this application for bail. Record shows that in respect of an incident which is alleged to have occurred on 15.07.2023 a delayed first information report dated 16.07.2023 was lodged by first informant, namely, Ajay Rajpoot (father of the prosecutrix) and was registered as Case Crime No.0381 of 2023, under Sections 363, 366 IPC, police station Naubasta, district South (Commissionerate Kanpur Nagar). In the aforesaid F.I.R., applicant Uzaif Waris Khan has been nominated as solitary named accused. The gravamen of the allegations made in the first information report is to the effect that named accused Uzaif Waris Khan enticed away the daughter of the first informant i.e. prosecutrix aged about 17 years. After aforementioned first information report was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. The prosecutrix was recovered on 16.07.2023. The statement of the prosecutrix was recorded under Section 161 CrPC, which is on record at page 34 of the paper book. The prosecutrix in her aforesaid statement has not supported the FIR. To the contrary, the prosecutrix has stated that she herself went to the applicant on the message sent by the applicant. Thereafter, the prosecutrix was requested for her internal medical examination but the same was refused by her. Ultimately, the statement of the prosecutrix was recorded under Section 164 CrPC, which is on record at page 42 of the paper book. The prosecutrix in her aforesaid statement has rejoined her previous statement under Section 161 CrPC. Investigating Officer on the basis of above and other material collected by him during the course of investigation came to the conclusion that complicity of applicant is fully established in the crime in question. He, accordingly, submitted the charge-sheet dated 28.08.2023, whereby applicant has been charge-sheeted under Sections 363, 366, 376 IPC and Section 3/4 Pocso Act. Learned counsel for the applicant contends that though the applicant is a named as well as charge-sheeted accused yet he is liable to be enlarged on bail. The prosecutrix in her statements recorded under Section 161/164 CrPC has not supported the FIR. The prosecutrix and the applicant were in love with each other for the last one year as is clearly explicit from her statement under Section 161 CrPC. Therefore, she is a willing and consenting party. As such, no offence as complained of can be said to have been committed by the applicant. On the above premise, the learned counsel for applicant submits that applicant is liable to be enlarged on bail. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. The applicant is in jail since 17.07.2023. As such, he has undergone more than three months of incarceration. The police report in terms of Section 173 (2) CrPC has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. It is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the investigation/trial. Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since the applicant is a named as well as charge-sheeted accused therefore, he does not deserve any indulgence by this court. He submits that as per the High School Certificate, the date of birth of the prosecutrix is 16.10.2005. The occurrence giving rise to present criminal proceeding is alleged to have occurred on 15.07.2023. As such, the prosecutrix is aged about 17 years 08 months and 13 days on the date of occurrence therefore, she is covered within the definition of 'child' under the Pocso Act. Since the prosecutrix is minor and below 18 years of age therefore her consent, if any, is wholly immaterial. On the above premise, he contends that no sympathy be shown by this Court in favour of applicant. When confronted with above, the learned counsel for applicant could not overcome the same. 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, coupled with the fact that the prosecutrix is a small girl aged below 18 years of age therefore her consent, if any, is wholly immaterial therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of the present application for bail, this Court does not find any good or sufficient ground to enlarge the applicant on bail. This application for bail thus fails and is liable to be rejected. It is accordingly rejected. Order Date :- 30.10.2023. "

6. Learned counsel for applicant contends that though the applicant is a named and charge sheeted accused and facing trial before court below by way of aforementioned special sessions trial yet he is liable to be enlarged on bail. In furtherance of aforesaid submission, the learned counsel for applicant contends that applicant is in jail since 17.07.2023. As such, he has undergone more than one year and six months of incarceration. It is then contended by the learned counsel for applicant that as per the mandate of Section 35 (2) of the POCSO Act, the statement of the prosecutrix should be recorded within a period of 30 days from the date of taking cognizance. However, in the present case, the statement of the prosecutrix was recorded on 18.12.2024 i.e. after more than one year and five months. No explanation regarding above has come forward from the prosecutrix regarding non- compliance of Section 35 (2) of the POCSO Act for such a long period. It is lastly contended by the learned counsel for applicant that since the statement of the prosecutrix has already been 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. As such, no good ground now exists to prolong the custodial arrest of applicant.

7. It is further contended by the learned counsel for applicant that the prosecutrix in her deposition before court blow has clearly stated that her modesty was not dislodged by applicant on

15.07.2023. As such, the applicant is liable to be enlarged on bail.

8. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. 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 crystallised. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

9. Per contra, the learned A.G.A. for State-opposite party-1 and the learned counsel representing first informant/opposite party-2 have vehemently opposed this repeat application for bail. They submit that since applicant is a named and charge sheeted accused, therefore, he does deserve any indulgence by this Court. Considering the nature and gravity of offence and also the period of punishment provided for the offence complained of, no interference is warranted by this Court. In view of above, the period of incarceration undergone by applicant is by itself not so sufficient a circumstance so as to enlarge the applicant on bail. It is then contended by the learned A.G.A. and the learned counsel representing first informant/opposite party-2 that Section 35 (2) of the POCSO Act only directs that statement of the victim/child should be recorded within a period of 30 days from the date of taking cognizance. However, Section 35 (2) of the POCSO Act is not embedded with a non-obstante clause that in case the statement of the victim/child is not recorded within 30 days from the date of taking cognizance, an accused shall be liable to be enlarged on bail. According to learned A.G.A. the prosecutrix in her deposition before court below has supported the F.I.R. Consequently, she has not been declared hostile. According to the learned A.G.A. even though, this court is a superior court, dictates of prudence require that this court should not evaluate the evidence which has emerged on record as any such exercise undertaken by this court with regard to quality and nature of offence, which has emerged before the trial court, may affect the prosecution or the defence. The import of the testimony of the witnesses, who have deposed before court below, should be left to be evaluated by the trial court itself. On the above premise, the learned A.G.A. submits that no new, good or sufficient ground has emerged so as to enlarge the applicant on bail.

10. When confronted with above, the learned counsel for applicant has rejoined the submissions urged by him in support of this repeat application for bail. However, he could not dislodged the factual and legal submissions urged by the learned A.G.A. in opposition to this repeat application for bail.

11. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant/opposite party-2, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant and coupled with the fact that objections raised by the learned A.G.A. in opposition to this repeat application for bail as noted herein above are not only borne out from the record but furthermore, the same could not be dislodged by the learned counsel for applicant with reference to the record, therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of present repeat application for bail but without making any comment on the merits of the case, this court does not find any new, good or sufficient ground so as to enlarge the applicant on bail.

12. As a result, present repeat application for bail fails and is liable to be rejected.

13. It is accordingly rejected. Order Date :- 7.2.2025 YK YASHWANT KUMAR High Court of Judicature at Allahabad