Allowed

Shailesh Sahani v. State of U.P. and Another

Allahabad HC1 Nov 2021BAIL/18334/2021

Case brief

AI extract

What is this about?

Hon'ble Rahul Chaturvedi, J. granted bail to Shailesh Sahani charged with offences under IPC and POCSO Act. The court noted the marriage between applicant and victim, inordinate FIR delay, and lack of medical evidence of rape as factors allowing bail, subject to strict conditions.

What did the court decide?

Applicant released on personal bond with two sureties (to be furnished later) subject to strict conditions of appearance and no adjournments.

Shailesh Sahani Vs State of U.P. and Another — Narcotics (NDPS) | Allahabad HC (2021)

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Court No. - 67

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18334 of 2021

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Applicant :- Shailesh Sahani Opposite Party :- State of U.P. and Another Counsel for Applicant :- Nirbhay Kumar Bharti Counsel for Opposite Party :- G.A.,Raj Kumar Singh

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Hon'ble Rahul Chaturvedi,J.

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Heard learned counsel for the applicant, learned counsel for the complainant as well as learned A.G.A for the State and perused the record.

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By means of this application, the applicant who is involved in case crime no.128 of 2020, under Section 363, 366, 376 IPC and Section 5/6 of POCSO Act, Police Station-Haldi, District-Ballia is seeking enlargement on bail during the trial.

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Submission made by learned counsel for the applicant is that the FIR was got registered by one Babita Devi, mother of the prosecutrix under section 363 and 366 IPC on 24.09.2020 for the incident said to have taken place on 11.09.2020. It is contended by learned counsel for the applicant that there is inordinate delay in lodging of the FIR of which there is no justification coming forward against the applicant and one Bharat with the allegation that the named accused persons have enticed away his minor girl aged about 17 years and despite of best efforts, she could not be traced out. Eventually, the girl was recovered on 14.11.2020. Meanwhile, the applicant and the victim approached this Court by filing Writ-C No.19326 of 2020 before this Court and this Court vide order dated 08.12.2020 has protected the interest of the couple. The next contention is that the contesting parties are major and they have decided to tie the nuptial knot between them and they have got married on 08.12.2020 and since then, both of them are residing as husband and wife. The applicant is languishing in jail since 24.01.2021.

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Learned counsel for the complainant opposed the prayer for bail by making a mention that victim is high school passed and as per high school certificate, her date of birth is 05.07.2003 and on the date of incident i.e. on 11.09.2020, she was 17 years 2 months and 7 days. In addition to above, she has declined herself for any internal or external medical examination by the medical board so as to ascertain the alleged factum of rape upon her. Learned A.G.A. has drawn the attention of the Court to 164 Cr.P.C. statement of the girl recorded before the Magistrate in which she has candidly admitted that the applicant is her husband with whom she has got married and approached this Court.

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In totality of circumstances, that the girl has declined to get her medical examination, it is not possible for the Court to give any assumption with regard to rape upon her. Moreover, taking into account the 164 Cr.P.C. statement where she herself admits that the applicant is the husband and her conduct that she remained with the applicant for considerable period without any resistance or

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screaming, she seems to be in consensual relationship with the applicant.

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Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail.

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Let the applicant, Shailesh Sahani , who is involved in the aforesaid case 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.

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(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.

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(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.

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(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(iv) 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. 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.

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(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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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.

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Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:

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The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.

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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

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The computer generated copy of such order shall be self attested by the counsel of the party concerned.

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The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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Order Date :- 1.11.2021 Sumit S

Shailesh Sahani v. State of U.P. and Another

Case brief

What is this about?

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Shailesh Sahani v. State of U.P. and Another

Case brief

What is this about?

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