Allowed

Arif S/O Sharif v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

Allahabad HC17 Aug 2022/6055/2022

Case brief

AI extract

What is this about?

This Court allowed the bail application of the applicant arrested under Sections 363, 366, 376 IPC and POCSO Act. The Court relied on the contradiction in the victim's statements (Sec 161 vs 164 CrPC) and the medical report which did not support rape allegations, applying the principles in Dataram Singh.

What did the court decide?

The applicant Arif was released on bail by executing a personal bond and two sureties, subject to conditions regarding appearance, cooperation in trial, and no tampering with evidence.

Arif S/O Sharif Vs State of U.P. Thru. Prin… — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 13

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6055 of 2022

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Applicant :- Arif S/O Sharif Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others Counsel for Applicant :- Manoj Kumar Shukla,Ajeet Kumar Singh,Ravindra Gupta Counsel for Opposite Party :- G.A.

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Hon'ble Shamim Ahmed,J.

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This case is taken up in the revised call.

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None has appeared on behalf of the opposite party no. 2.

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As per Office Report dated 11.07.2022 notice issued to opposite party no.2 has been served personally, but neither any has put in appearance on behalf of opposite party No.2 nor any counter affidavit has been filed, therefore, this Court has no option except to hear and decide the bail application.

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Heard Sri Ajeet Kumar Singh, learned counsel for the applicant and Sri Sushil Kumar Pandey, learned A.G.A. for the State and perused the record.

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This application has been filed seeking the release of the applicant on bail in Case Crime No. 33/2022, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, Police Station Tadiyawan, District Hardoi.

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Learned counsel for the applicant submits that as per prosecution case the applicant and co-accused Sandeep are said to have taken away the daughter of the first informant aged about 17 years, on 15/16.1.2022 at about 4.00 am. The applicant used to come to the house of the first informant and when he was asked not to do so, he is stated to have given a mobile phone to the daughter of the first informant.

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Learned counsel for the applicant further submits that the applicant is innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him and defame the image of the applicant and his entire family in the society. No such incident took place, as alleged by the prosecution.

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Learned counsel for the applicant further submits that the applicant and other co-accused has been falsely implicated in the present case due to village party bandi and enmity.

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Learned counsel for the applicant further submits that the victim in her statement recorded under Section 161 Cr.P.C. has not stated anything regarding sexual assault, but has stated that two months prior the applicant has made physical relation with the victim and the victim and the applicant are in relation for a long period, but in the statement recorded under Section 164 Cr.P.C. she has totally changed her version and stated that no one has committed the rape either the applicant or the coaccused Sandeep, but false promise of marriage was made by the applicant and when she was going by motorcycle with the applicant and Sandeep, the police caught them on the way.

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Learned counsel for the applicant further submits that the allegation of making physical relation got demolished after perusal of the medical report, wherein the doctor in his report opined that there is no external or internal injury was found on any part of the body of the victim and no definite opinion regarding sexual assault can be given and as per medical report the age of the victim is 17 years and taking the benefit of two years, either side, the victim knows consequences very well.

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Learned counsel for the applicant further submits that the coaccused Sandeep, who has also assigned the same role has already been granted bail by a co-ordinate Bench of this Court vide its order dated 26.07.2022 passed in Criminal Misc. Bail Application No. 3756 of 2022 and the case of the applicant is not on worse footing than that of the co-accused who has already granted bail by this Court, therefore, the bail application of the applicant may also be considered and he should also be released on bail on principles of parity.

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Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history, which has been explained in para 22 of the affidavit filed in support of the bail application and the applicant is in jail since 16.01.2022 and has by now done a substantial period of incarceration, therefore, the bail application of the applicant may also be considered by this Court sympathetically and he should also be released on bail.

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Learned A.G.A. opposed the prayer for bail, but did not dispute

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this fact that co-accused Sandeep, who has also assigned the same role has already been granted bail by a co-ordinate Bench of this Court.

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After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that there is vast contradiction in the statement of the victim recorded under Section 161 and 164 Cr.P.C. and as the medical report does not support the allegation of rape, as the doctor has given his opinion that neither any internal or external injury found on the any part of the victim; the age of the victim is 17 years and taking the benefit of two years, either side, the victim knows consequences very well and considering that similarly circumstanced and identically placed co-accused has already been granted bail by a co-ordinate Bench of this Court and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the applicant may be enlarged on bail.

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The prayer for bail is granted. The application is allowed.

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Let the applicant- Arif involved in Case Crime No. 33/2022, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, Police Station Tadiyawan, District Hardoi be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

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(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

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(2) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

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(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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(4) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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(5) In case, the applicant misuses the liberty of bail during trial, 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, then, 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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(6) The applicant shall remain present, 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. 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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(7) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

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(8) 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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It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.

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

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Order Date :- 17.8.2022

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Arvind

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Digitally signed by ARVIND KUMAR SRIVASTAVA Date: 2022.08.18 16:19:58 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Arif S/O Sharif v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

Case brief

What is this about?

What did the court decide?

Arif S/O Sharif v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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