Allowed

Ashwani Kumar v. State of U.P through Secretary Home and 3 Others

Allahabad HC9 May 2022BAIL/10935/2022

Case brief

AI extract

What is this about?

High Court allowed bail to Ashwani Kumar charged under IPC and POCSO sections for enticement of a minor. Despite serious allegations, considering totality of facts and ratio of Supreme Court judgments, the court held it was a fit case for bail subject to specific conditions regarding witness tampering and court attendance.

What did the court decide?

Released on bail by furnishing personal bond and two reliable sureties, subject to strict conditions regarding witness tampering and trial attendance.

Ashwani Kumar Vs State of U.P through… — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 72

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10935 of 2022

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Applicant :- Ashwani Kumar Opposite Party :- State Of U.P Through Secretary Home And 3 Others Counsel for Applicant :- Rajeev Kumar Saxena Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Pachori,J.

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Heard Sri Rajeev Kumar Saxena, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record.

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The present bail application has been filed on behalf of applicant Ashwani Kumar under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 255 of 2021 for offence punishable under Sections 363, 366, 376, 506 of the Indian Penal Code & Section 3/4 Protection of Children From Sexual Offences Act, 2012, registered at Police Station- Phaphund, District- Auraiya, during pendency of the trial, after rejecting the bail application of the applicant by Special Judge (POCSO) Act, Auraiya vide order dated 07.12.2021.

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Brief facts of the present case are that the first information report dated 20.07.2021 has been lodged against the applicant and other five named persons by the father of the victim stating therein that on 19.04.2021 at about 3 o'clock at night minor girl of the first informant aged about 18 years enticed away by the applicant and other co-accused persons are involved in the conspiracy for enticing away of his minor daughter. When the first informant complaint to all of them, then the co-accused persons threatened to him for dire consequences. He lodged an first information report when the son of the first informant came home.

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After lodging of the first information report statement of the victim was recorded under Section 161 Cr.P.C. on 21.07.2021; the victim has refused to get her internal medical examination on 01.10.2021; the statement of the victim was recorded under Section 164 Cr.P.C. on 04.10.2021. After recording the statement of the prosecution witnesses, charge-sheet was submitted by the Investigating Officer on 10.11.2021. The applicant was arrested on 06.10.2021.

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Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that the F.I.R. has been lodged after three months of the incident. It is further submitted that as per school certificate of the victim, the date of birth of the victim is 09.03.2004, her age was about 17 years, 01 month and 10 days at the time of the incident. It is further submitted that as per ossification report epiphysis of knee elbow and wrist joint are found fused and the age of the victim was 18 years at the time of ossification test. It is further submitted that the victim has not supported the prosecution case in her statement recorded under sections 161 and 164 Cr.P.C. and stated that she left her house on her own free and sweet will. It is next submitted that she travelled with the applicant from Auraiya to Gurgaon (Haryana) and where she solemnized marriage with the applicant. It is further submitted that victim has given birth to a male child and she is living in the house of her mother-inlaw.

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He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail.

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Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the F.I.R. cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

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After considering the facts of the present case it prima facie appears that;

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(a) As per school certificate the age of the victim was about 17 years, 01 month and 10 days at the time of the incident and as per ossification test, the age of the victim was 18 years;

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(b) Victim has not supported the prosecution case in her statement recorded under sections 161 and 164 Cr.P.C., it would not be appropriate to discuss the same at this stage;

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(c) Victim has stated in her statement that she left her house on her own free and sweet will and she travelled with the applicant from Auraiya to Gurgaon (Haryana) where she stayed about 3 months with the applicant;

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It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

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Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

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Let applicant, Ashwani Kumar be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

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(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

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(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

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(iii) 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 of Cr.P.C.

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(iv) 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 the trial court.

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(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

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(vi) The applicant shall not indulge in any criminal activity or

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commission of any crime after being released on bail.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.

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The trial court may make all possible efforts/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

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It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

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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 :- 9.5.2022 Ishan

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Digitally signed by ISHAN JAISWAL Date: 2022.05.13 18:09:45 IST Reason: Location: High Court of Judicature at Allahabad

Ashwani Kumar v. State of U.P through Secretary Home and 3 Others

Case brief

What is this about?

What did the court decide?

Ashwani Kumar v. State of U.P through Secretary Home and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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