Allowed

Shahjad@ Shahjada v. State of U.P. and Another

Allahabad HC16 Dec 2021BAIL/29782/2021

Case brief

AI extract

What is this about?

Single judge allowed bail to the applicant charged with offences under IPC and POCSO Act. The court observed no convincing material to indicate tampering with evidence and directed strict conditions regarding attendance and non-harassment of the victim.

What did the court decide?

Released on bail by furnishing personal bond and two sureties subject to strict conditions including attendance at trial and prohibition of tampering.

Shahjad@ Shahjada Vs State of U.P. and Another — Child Sexual Offences (POCSO) | Allahabad HC (2021)

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Court No. - 78

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29782 of 2021

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Applicant :- Shahjad@ Shahjada Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashok Kumar Singh

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Hon'ble Samit Gopal,J.

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Matter taken up in the revised list.

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Notice was issued to the opposite party no.2 vide order dated 13.08.2021. As per the office report dated 29.11.2021, a report of CJM concerned has been received which is uploaded on the portal.

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In the said report dated 29.09.2021 it is reported that the first informant has refused to take notice when an effort was done to serve him. A police report dated 20.10.2021 is enclosed with it stating about the same. Notice is thus deemed sufficient.

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No one appears on behalf of the first informant even when the matter has been taken up in the revised list.

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Heard Sri Ashok Kumar Singh, learned counsel for the applicant, Sri Raj Kumar Gupta, learned counsel for the State and perused the material on record.

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This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Shahjad@ Shahjada, seeking enlargement on bail during trial in connection with Case Crime No. 205 of 2021, under Sections 363, 376, 506 I.P.C. and 3/4 POCSO Act, registered at Police Station Pilkhuwa, District Hapur.

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Learned counsel for the applicant argued that the First Information Report was lodged under Sections 363, 376, 511 IPC and 7/8 of the POCSO Act by the father of the prosecutrix although naming the applicant but is a false and concocted story. It is argued that the prosecutrix is a major girl. The C.M.O., Hapur in his age certificate dated 12.05.2021 has opined the age of the prosecutrix as 17 years and by giving benefit of variation of two years, she would be a major. It is argued that subsequently the first informant in his statement recorded under Section 161 Cr.P.C. he has reiterated the version of the First Information Report but later on in the same to a specific question to the Investigating Officer has stated that the

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applicant committed rape upon his daughter and the said fact could not be mentioned in the First Information Report.

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It is argued that later on the prosecutrix in her statements under Section 161 Cr.P.C. and 164 Cr.P.C. has stated that the applicant committed rape upon her which is also an afterthought just in order to falsely implicate the applicant. It is argued that the medical examination does not corroborate with the prosecution story as the doctor did not find any injury on her private part. It is further argued that looking to the opinion of the doctor and the medical evidence, it is evident that she is habitual to sexual intercourse. He further argued that the applicant has no criminal history as stated in para 16 of the affidavit and is in jail since 19.05.2021.

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Per contra, learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the First Information Report and there is an allegation of his making an attempt to commit rape and enticed her away. It is argued that the applicant is involved in the present case. The prosecutrix has in her statements under Section 161 Cr.P.C. and 164 Cr.P.C. disclosed about the allegation of committing rape by the applicant.

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After having heard learned counsels for the parties and perusing the records, it is evident that in the First Information Report lodged by the father of the prosecutrix, there is an allegation of attempt to commit rape by the applicant. Subsequently, in the statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. of the prosecutrix there is an allegation of rape being committed by the applicant.

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Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

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Let the applicant Shahjad@ Shahjada , be released on bail in the aforesaid case crime number on 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:-

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i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

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ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in

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any manner whatsoever.

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(iii) 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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(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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 I.P.C.

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(V) 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 and the trial court may proceed against him under Section 229A IPC.

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(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

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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.

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The bail application is allowed.

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Order Date :- 16.12.2021 M. ARIF

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Digitally signed by Justice Samit Gopal Date: 2021.12.18 12:06:29 IST Reason: Document Owner Location: High Court of Judicature at Allahabad

Shahjad@ Shahjada v. State of U.P. and Another

Case brief

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Shahjad@ Shahjada v. State of U.P. and Another

Case brief

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