Appeal allowed. Bail rejected by Additional Sessions Judge set aside. Appellant granted bail with personal bond and two sureties on conditions to cooperate in trial and not tamper with evidence.
Judgment and order dated 06.03.2018 set aside; appellant released on bail by furnishing personal bond and two sureties.
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Court No. - 52
Case :- CRIMINAL APPEAL No. - 2069 of 2018
Appellant :- Sanju Sahani Respondent :- State Of U.P. And Another Counsel for Appellant :- Pradeep Kumar Counsel for Respondent :- G.A.
Hon'ble Rajul Bhargava,J.
Learned CJM, Maharajganj has filed affidavit, which is taken on record.
By an order dated 09.08.2018 the CJM, Maharajganj was directed to ensure service of notice on the opposite party No.2 within two weeks through concerned police station and submit its report within the said period along with explanation as to why till date the earlier compliance report has not been submitted and the matter was posted for hearing on 27.08.2018. Since, the office report dated 25.08.2018 reflects that the said compliance report is still awaited from the CJM, Maharajganj, therefore, the Court by an order dated 27.08.2018 directed the CJM, Maharajganj to appear in person before this Court today and submit explanation in writing as to why the order passed by this Court on 17.04.2018 and 09.08.2018 have not been complied with by him till date. He was also directed to submit explanation as to why disciplinary action be not recommended against him. In this behalf, explanation of Sri Parmeshwar Prasad, Chief Judicial Magistrate, Maharajganj supported by an affidavit has been filed today in which it is averred that he took over the charge of the CJM, Maharajganj on 07.07.2018 and he has no knowledge about the proceedings prior to it. However, on 18.08.2018 he had received the intimation for service of notice on the opposite party No.2 from the Court. In compliance of the aforesaid order, the notice was served on respondent No.2 and its communication was sent by e-mail to this Court on 24.08.2018, which was received by the office at 12:48:51 P.M. It is submitted that it appears that the receipt of the intimation by e-mail was not placed before this Court by the office. I am satisfied with the explanations furnished by the CJM, Maharajganj and there is no default on his part in complying with the orders of this Court dated 17.04.2018 and 09.08.2018. In view of it, notice is hereby discharged and personal appearance of CJM, Maharajganj is hereby exempted.
In the affidavit filed by the CJM, Maharajganj, annexure-5 indicates that notice has been served personally on the respondent No.2, yet no one has appeared on his behalf to oppose the bail prayer in the instant appeal.
Heard Sri Pradeep Kumar, learned counsel for the applicant and the learned A.G.A. for the State and perused the record.
This appeal has been filed against judgment and order dated 06.03.2018 passed by learned Additional Sessions Judge, Court No. 4, Maharajganj passed in Bail Application No. 264 of 2018 (Sanju Sahani Vs State of U.P.), arising out of Case Crime No. 358 of 2017, under Sections 363, 366-A, 376 I.P.C., Section 3/4 & 16/17 of POCSO Act and Section 3(2)5-Ka of SC/ST Act, P.S. Nautanwa, District- Maharajganj, by which bail plea of appellant has been rejected.
Learned counsel for the appellant submitted that order of the learned court below rejecting bail application of applicantappellant is bad in law. It is the case of the prosecution that the appellant had kidnapped the minor daughters aged about 16 & 13 years of the first informant on 16.10.2017. The F.I.R. was lodged on 20.10.2017. During investigation, both the victims were recovered and the statement of the elder daughter of the first informant was recorded under Section 164 Cr.P.C. in which she has disclosed her age to be 18 years. She has also stated that she was in love with the appellant and she had travelled with him to Gorakhpur and stayed there for about two days and physical relations were also established between them. It is argued that the prosecutrix (K) has not levelled any allegation of rape. The younger daughter of the first informant has also not stated about rape on her by the appellant. Therefore, the appellant, who is languishing in jail since 23.10.2017, is entitled to be released on bail. Learned counsel for the appellant further submitted that learned court below has also failed to consider that appellant has no criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.
Learned A.G.A. has vehemently opposed the aforesaid submissions of learned counsel for the appellant and submitted that it is a case in which the appellant had kidnapped two minor daughters of the first informant. However, he could not dispute that the elder daughter of the informant has disclosed her age to be 18 years and further both the victims had refused for their internal medical examination.
Having heard the submission of learned counsel of both sides, considering the facts and circumstances of the case and nature of accusation against appellant and evidence in support of it and unlikelihood of conclusion of trial in near future, I find that a case for bail has been made out.
In the result, appeal is allowed. The judgment and order dated
06.03.2018 passed by learned Additional Sessions Judge, Court No. 4, Maharajganj is set aside.
Let appellant-applicant- Sanju Sahani, be released on bail in aforesaid case on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant-appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-appellant will not indulge in any unlawful activities.
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 and send the applicant to prison.
Order Date :- 10.9.2018 Vikas/-
3 issues framed by the court
Whether the appellant is entitled to bail given the nature of offences involving kidnapping and sexual offences against minors.
Whether the lower court erred in rejecting the bail application considering the prosecution testimony recorded in statement under Section 164 Cr.P.C.
Whether a case for bail is made out despite serious charges of kidnapping and POCSO offences.
8 provisions across 4 enactments
Sanju Sahani
State Of U.P.
Rajul Bhargava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
