Allowed

Izahan Hasan Khan S/O Sri Hasan v. State of U.P Thru. Prin. Secy. Home Lko.

Allahabad HC28 Sept 2022/6010/2022

Case brief

AI extract

What is this about?

The High Court disposed of a criminal bail application filed by a Class 12 student accused under Section 363 IPC for enticement of a minor. The court noted lack of evidence regarding force or allurement and the accused's student status, finding fit cases for bail without expressing a view on the merit of the accusation.

What did the court decide?

Released on bail on personal bond and two heavy local sureties subject to conditions regarding court attendance and non-interference with witnesses.

Izahan Hasan Khan S/O Sri Hasan Vs State of U.P Thru… — Bail and Remand | Allahabad HC (2022)

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Order in Chamber

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6010 of 2022

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Applicant :- Izahan Hasan Khan S/O Sri Hasan Opposite Party :- State Of U.P Thru. Prin. Secy. Home Lko.

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Counsel for Applicant :- Arun Sinha,Ram Chandra Singh,Umang Agarwal

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Counsel for Opposite Party :- G.A.,Ashish Kumar,Raj Kumar Pandey

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Hon'ble Shree Prakash Singh,J.

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Heard Sri Arun Sinha, learned counsel for the applicant, Sri Ashish Kumar, learned counsel for the informant, Sri Ajay Kumar Srivastava, learned AGA for the State and perused the record.

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Instant bail application has been filed with a prayer to release the applicant on bail during the trial in Case Crime No. 115 of 2022, under Section 363 IPC, Police StationWazirganj, District Lucknow.

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Learned counsel for the applicant submits that the applicant is innocent and he has falsely been implicated in the instant matter. He submits that the applicant is aged about 18 years and is pursuing his study. He added that as per the statement of prosecutrix under Section 164 Cr.P.C., she left her house at 5.30 P.M. on 5^th May, 2022 without informing anybody and prior to moving from her house, there was no any talk either with the applicant or with her uncle. As per her own statement, she herself boarded e-rickshaw and went Golaganj Bus Station and thereafter at Charbag and boarded a train for Mumbai. She also stated in her statement under Section 164 Cr.P.C. that she was flanked with four boys though they

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did not pursue her for leaving house. Counsel for the applicant submits that it is admitted fact that the applicant was not with the prosecutrix and there is neither any force or allurement for leaving the house by the applicant. He added that the prosecutrix is more than 18 years of age though false assertion has been made in her statement under Sections 161 and 164 Cr.P.C. and the prosecution has relied upon the date of birth of the prosecutrix which is endorsed in the school though he submits that some time parents also provide incorrect date of birth for extraneous reasons and thus medical examination should be relied upon.

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In support of his contention, counsel for the applicant has placed reliance on a judgement and order passed in Appeal (Criminal) No. 1112-1113 of 1999 (Vishnu @ Undrya vs State of Maharashtra dated 24^th November, 2005 and has referred the paragraph which is extracted as under;

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"On a bare perusal of the certificate, it is noticed that it is not an authenticated copy and no one has been examined to prove the age of the prosecutrix recorded in the school certificate. PW-1, Pandurang is the father of the prosecutrix. He has stated that his daughter Puspha (prosecutrix) was born on 29.11.1964. He has also stated that Pushpa was born at Kashibai Hospital, Santa Cruz, Bombay. This witness was subjected to lengthy cross-examination but his statement that the prosecutrix was born on 29.11.1964 remained unimpeached. In fact, in the cross-examination, this witness clarified that the date of birth given in the school was incorrect and he further clarified that the correct date of birth of Pushpa is 29.11.1964. It is a common knowledge that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children."

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He also added that the applicant is permanent resident of Mumbai but due to certain family problems, he came at Lucknow and started pursuing his study at Lucknow. He further added that criminal intent in committing the offence

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is prima facie missing. He has drawn attention towards page 45 of the bail application wherein the grand mother of the prosecutrix has also told to the prosecutrix that she should leave the house as she is not safe. He added that it is not a case where present applicant is involved in enticing away or kidnapping the prosecutrix but it seems that prosecutrix herself on her own sweet will, went away from her own house. He also added that the said four boys, who met with the prosecutrix, were not managed by the applicant or his uncle as there is no such assertion by the prosecutrix in her statement under Section 164 Cr.P.C. He also added that the prosecutrix has declined for medical examination and as such her age could not be ascertained medically. He next submits that as per statement of the prosecutrix, she was neither forced nor sexually or bodily assaulted. He added that the applicant is studying in Class 12 and having a broad academy carrier and if the applicant is not released on bail, his carrier would be ruined as the trial proceeding is not going to be concluded in near future.

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He further added that the applicant is not habitual offender and there is no any previous criminal antecedent of the applicant. The applicant is law abiding citizen and he is languishing in jail since 11^th May, 2022. The applicant undertakes that he will not misuse the liberty of bail and will co-operate in the trial proceeding.

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On the other hand, learned counsel appearing for the informant has vehemently opposed the contention aforesaid and on the basis of counter affidavit dated 26^th July, 2022 submits that accused/applicant is more than 20 years old and is in habitual relationship with young

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innocent and minor girl by alluring them through social media forum and sites. He also added that prosescutrix was not only trapped by the present applicant but his uncle as well as family members were also involved in kidnapping and enticing away the prosecutrix. He added that uncle of the applicant namely Raja Khan has managed four boys for escorting the girl to all through journey up to Mumbai though with the grace of the God, aforesaid was not happened. He also added that the present applicant has also admitted his guilt before the police in his statement under Section 161 Cr.P.C. He also added that the offence has been committed in very meticulous manner as there CDRs speaks that they were inter-connected. He added that ingredients of Section 363 of Cr.P.C. is very well attracting in the instant matter and the applicant is of criminal mindset and is involved in alluring innocent girls to get them fall in love and as such, he could not be said as he is innocent. He added that involvement of his uncle Raja Khan and his family members is very well evident from the investigation as well as the statement of the prosecutrix, as such the present applicant is not entitled for any relief.

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Having heard the learned counsel for the parties and after perusal of record, it is evident that the applicant is student of intermediate class and he was not arrested on spot along with the prosecutrix. The police on information itself has recovered the prosecutrix. Further chatting with prosecutrix along with her friends are clear that her grand mother was knowing the fact of leaving the house by the prosecutrix as during the course of chatting, the prosecutrix said "isliye my dadi is saying run away you are not safe". Further at the time of leaving of the house,

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there was no any call or talk in between the prosecutrix and the applicant and further four persons who said to have escorting the prosecutrix, neither intimidated for leaving the house nor they have anything which the prosescutrix herself has stated in her statement under Section 164 Cr.P.C.

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Starting sentence of Section 363 IPC says "whoever take away or enticed away minor" clearly indicates that the active participation in taking away or enticing a minor is required for fulfillment of ingredients of Section 361 IPC. In the instant matter, it seems that while leaving the house, there was no any conversation with the prosecutrix to the applicant and for this reason, she could not reach to the place of the applicant. It has been alleged that uncle of the present applicant was involved in kidnapping the prosecutrix is prima facie seems to be weak as had it been managed by Raja Khan, certainly the prosecutrix would not have boarded herself e-riskshaw or other public conveyance. The chat of the prosecutrix also shows that she had planed to leave the house under certain unavoidable circumstances.

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It is noticeable that there is no any evidence regarding force or allurement over the prosecutrix. Further as per the statement of the prosecutrix, she was not sexually assaulted by any one including the present applicant and as such she has denied her medical examination. Further due to denial of the medical examination, the actual age of girl could not be ascertained. This Court is also not unmindful that the applicant is pursuing study in Intermediate class. Further there is no any previous criminal antecedent of the applicant. The applicant is

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languishing in jail since 11^th May, 2022.

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Thus, considering the submissions of learned AGA, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and without expressing any view on the merits of the case, I find it to be a fit case for bail.

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Let the applicant- Izahan Hasan Khan involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two heavy local sureties each in the like amount, to the satisfaction of the court concerned, with the following conditions:-

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(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;

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(2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He 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 of the Indian Penal Code;

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(3) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.; and

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(4) In case, the applicant misuses the liberty of bail during

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trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code.

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The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.

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It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case.

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Order Date :- 28.9.2022 A.Kr*

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Digitally signed by AJAY KUMAR Date: 2022.10.01 13:02:06 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Izahan Hasan Khan S/O Sri Hasan v. State of U.P Thru. Prin. Secy. Home Lko.

Case brief

What is this about?

What did the court decide?

Izahan Hasan Khan S/O Sri Hasan v. State of U.P Thru. Prin. Secy. Home Lko.

Case brief

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