High Court · 2025

2. Heard Sri Punya Sheel Pandey, learned counsel for the applicant and Sri Prashant Sharma, holding brief of Sri Nitinjay Pandey, learned counsel for the informant as well as Sri Jai Kishan Chaurasiya, learned State Law Officer and perused the record.

3. Supplementary affidavit filed by the learned counsel for the applicant today is taken on record.

4. Applicant seeks bail in Case Crime No. 11 of 2024, under Sections 376DA, 506 I.P.C. and Section 5G/6 of the POCSO Act, Police Station Nidhauli Kalan, District Etah, during the pendency of trial. PROSECUTION STORY:

5. The applicant and two other co-accused persons are stated to have forcibly abducted the victim to their house and had outraged her modesty and had threatened her not to reveal the matter anywhere on 15.01.2024 at about 00:25 hours. ARGUMENTS ON BEHALF OF APPLICANT :

6. The applicant has been falsely implicated in the present case and he has nothing to do with the said offence.

7. The FIR is delayed by about more than one day and there is no explanation of the said delay caused.

8. The FIR was instituted regarding outraging the modesty only but subsequently, in the statement of the victim recorded under section 164 Cr.P.C., the allegations have been escalated to that of rape.

9. The allegations of rape do not stand fortified by any medical evidence whatsoever.

10. Even the internal and internal medical examination report does not indicate any injury on the body of the victim.

11. The vaginal smear was sent for forensic analysis and it was found containing human semen.

12. The said exercise is sham as the case diary indicates that the sample was sent twice and it is against ethics to send a sample that too of the vital part for forensic analysis twice.

13. A bare perusal of the case diary dated 24.01.2024 categorically indicates that the slide was sent for forensic analysis through Constable Awadhesh Kumar and the same fact has been reiterated in the case diary dated 02.02.2024 that again the said smear was sent for forensic analysis.

14. It is pertinent to mention here that the forensic report which indicates that the sample sent on 02.02.2024 was analyzed and it is categorically mentioned in it that no details of the offender and offence were mentioned on the said slide whatsoever, as such, the said report cannot be taken into consideration.

15. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no criminal history of the applicant. The applicant is languishing in jail since 18.05.2024. The applicant is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail. ARGUMENTS ON BEHALF OF INFORMANT :

16. The bail application has been opposed on the ground that as per school certificate, age of the victim is 14 years and as per ossification test report, age of the victim has come up to be 14-15 years only, as such, the victim was minor and her consent, if any, has no significance in the eyes of law. The applicant is not entitled for bail. CONCLUSION:

17. In light of the judgement of the Supreme Court passed in Niranjan Singh and another vs Prabhakar Rajaram Kharote and others AIR 1980 SC 785, this Court has avoided detailed examination of the evidence and elaborate documentation of the merits of the case as no party should have the impression that his case has been prejudiced. A prima facie satisfaction of case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.

18. The well-known principle of "Presumption of Innocence Unless Proven Guilty," gives rise to the concept of bail as a rule and imprisonment as an exception.

19. A person's right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because the person is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one's life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. The said principle has been recapitulated by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and Ors., 2022 INSC 690.

20. Reiterating the aforesaid view the Supreme Court in the case of Manish Sisodia Vs. Directorate of Enforcement 2024 INSC 595 has again emphasised that the very well-settled principle of law that bail is not to be withheld as a punishment is not to be forgotten. It is high time that the Courts should recognize the principle that "bail is a rule and jail is an exception".

21. Learned State Law Officer could not bring forth any exceptional circumstances which would warrant denial of bail to the applicant.

22. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned State Law Officer.

23. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

24. Let the applicant- Rahul involved in aforementioned 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 subject to following conditions. (i) The applicant shall not tamper with evidence. (ii) 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 313 Cr.P.C./351 B.N.S.S. 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.

25. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

26. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 10.3.2025 Sumit S (Justice Krishan Pahal) SUMIT SRIVASTAVA High Court of Judicature at Allahabad

2. Heard Sri Punya Sheel Pandey, learned counsel for the applicant and Sri Prashant Sharma, holding brief of Sri Nitinjay Pandey, learned counsel for the informant as well as Sri Jai Kishan Chaurasiya, learned State Law Officer and perused the record.

3. Supplementary affidavit filed by the learned counsel for the applicant today is taken on record.

4. Applicant seeks bail in Case Crime No. 11 of 2024, under Sections 376DA, 506 I.P.C. and Section 5G/6 of the POCSO Act, Police Station Nidhauli Kalan, District Etah, during the pendency of trial. PROSECUTION STORY:

5. The applicant and two other co-accused persons are stated to have forcibly abducted the victim to their house and had outraged her modesty and had threatened her not to reveal the matter anywhere on 15.01.2024 at about 00:25 hours. ARGUMENTS ON BEHALF OF APPLICANT :

6. The applicant has been falsely implicated in the present case and he has nothing to do with the said offence.

7. The FIR is delayed by about more than one day and there is no explanation of the said delay caused.

8. The FIR was instituted regarding outraging the modesty only but subsequently, in the statement of the victim recorded under section 164 Cr.P.C., the allegations have been escalated to that of rape.

9. The allegations of rape do not stand fortified by any medical evidence whatsoever.

10. Even the internal and internal medical examination report does not indicate any injury on the body of the victim.

11. The vaginal smear was sent for forensic analysis and it was found containing human semen.

12. The said exercise is sham as the case diary indicates that the sample was sent twice and it is against ethics to send a sample that too of the vital part for forensic analysis twice.

13. A bare perusal of the case diary dated 24.01.2024 categorically indicates that the slide was sent for forensic analysis through Constable Awadhesh Kumar and the same fact has been reiterated in the case diary dated 02.02.2024 that again the said smear was sent for forensic analysis.

14. It is pertinent to mention here that the forensic report which indicates that the sample sent on 02.02.2024 was analyzed and it is categorically mentioned in it that no details of the offender and offence were mentioned on the said slide whatsoever, as such, the said report cannot be taken into consideration.

15. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no criminal history of the applicant. The applicant is languishing in jail since 18.05.2024. The applicant is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail. ARGUMENTS ON BEHALF OF INFORMANT :

16. The bail application has been opposed on the ground that as per school certificate, age of the victim is 14 years and as per ossification test report, age of the victim has come up to be 14-15 years only, as such, the victim was minor and her consent, if any, has no significance in the eyes of law. The applicant is not entitled for bail. CONCLUSION:

17. In light of the judgement of the Supreme Court passed in Niranjan Singh and another vs Prabhakar Rajaram Kharote and others AIR 1980 SC 785, this Court has avoided detailed examination of the evidence and elaborate documentation of the merits of the case as no party should have the impression that his case has been prejudiced. A prima facie satisfaction of case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.

18. The well-known principle of "Presumption of Innocence Unless Proven Guilty," gives rise to the concept of bail as a rule and imprisonment as an exception.

19. A person's right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because the person is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one's life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. The said principle has been recapitulated by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and Ors., 2022 INSC 690.

20. Reiterating the aforesaid view the Supreme Court in the case of Manish Sisodia Vs. Directorate of Enforcement 2024 INSC 595 has again emphasised that the very well-settled principle of law that bail is not to be withheld as a punishment is not to be forgotten. It is high time that the Courts should recognize the principle that "bail is a rule and jail is an exception".

21. Learned State Law Officer could not bring forth any exceptional circumstances which would warrant denial of bail to the applicant.

22. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned State Law Officer.

23. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

24. Let the applicant- Rahul involved in aforementioned 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 subject to following conditions. (i) The applicant shall not tamper with evidence. (ii) 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 313 Cr.P.C./351 B.N.S.S. 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.

25. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

26. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 10.3.2025 Sumit S (Justice Krishan Pahal) SUMIT SRIVASTAVA High Court of Judicature at Allahabad