Allowed

Gaurav v. State of U.P.

Allahabad HC9 Feb 2022BAIL/39434/2021

Case brief

AI extract

What is this about?

The High Court heard a bail application for an accused charged with enticement of a minor and sexual offences. Relying on precedent and the severity of the charges, the court granted bail after considering arguments regarding contradictions in evidence and the applicant's release in related sections amidst public health concerns.

What did the court decide?

The applicant Gaurav was released on bail upon furnishing a personal bond and two sureties in the like amount, subject to standard conditions regarding trial appearance and evidence tampering.

Gaurav Vs State of U.P. — Child Custody and Guardianship | Allahabad HC (2022)

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Court No. - 92

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39434 of 2021

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Applicant :- Gaurav Opposite Party :- State of U.P. Counsel for Applicant :- Bindu Kumari Counsel for Opposite Party :- G.A.

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Hon'ble Vikas Budhwar,J.

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Heard Mrs. Bindu Kumari, learned counsel for the applicant and Sri Avaneesh Kumar Shukla learned AGA for the State.

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This bail application purported to be under Section 439 of the Cr.P.C. has been moved on behalf of applicant- Gaurav for enlarging him on bail in Case Crime No.450 of 2020, under Section 328 IPC and Section 3(2)(5) SC/ST Act, registered at Police Station-Dhankaur, District-Gautam Budh Nagar.

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The bail application of the applicant has been rejected by the court below, on 24.6.2021.

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Learned counsel for the applicant has argued that a first information report has been lodged by Sri Ashok Kumar before the P.S. Dhankaur, District Gautam Budh Nagar, being FIR No. 0450 on 18.10.2020 at 15.31 hours under Section 363 IPC against the applicant with an allegation that the daughter of the complainant is aged about 17 years and she has been enticed away by the applicant. He has drawn the attention of this Court towards annexure-2 at page 16 being statement under Section 161 Cr.P.C. so as to contend that the victim has come up with a case that she is 16 years and she had gone with the applicant according to her sweet will on 17.10.2020. He has next drawn the attention of this court at page 22 so as to contend that the victim has come with stand that she knew the applicant and she had gone with him, however in a cold-drink something was mixed on account whereof she become unconscious. He has further drawn the attention of this court towards annexure-3 at page 21 being the medico legal injury report wherein it has been observed that no opinion external injury found. He has further argued that he has been falsely implicated in the case in question and further even the proceedings in the same Case Crime No.450 of 2020, under Sections 363, 376(3) IPC and 3/4 POCSO Act was also initiated and the applicant compelled with these facts and circumstances had no option but to file Criminal Misc. Bail Application No.11182 of 2021 in which he has been enlarged on bail. For ready reference the same is quoted

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hereunder:-

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"Heard learned counsel for the applicant, Sri Sanjay Singh, learned AGA-I for the State and perused the record.

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The submission of learned counsel for the applicant is that the applicant has been falsely implicated in the present case due to ulterior motive. He is innocent and has no criminal antecedent. It is further submitted that the victim and applicant are well known to each other. It is stated that according to her Aadhar Card the victim is major, she denied her internal medical examination. It is next contended that there are general allegations and a concocted and false story has been set up by the prosecution whereas the applicant did not commit any offence as alleged. It is also contended thatthere is material contradiction in the contents of first information report, statements recorded under Sections 161 and 164 Cr.P.C. as also medical evidence, which shows that a false and concocted story has been set up against the applicant. 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. The applicant is languishing in jail since 19.10.2020. He undertakes that he will not misuse the liberty, if granted, therefore, he may be released on bail.

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Learned counsel appearing for the opposite party vehemently opposed the prayer.

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Having heard submissions of learned counsel of both sides, considering nature of accusation, severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction in support of the charge, reformative theory of punishment, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, (2018) 3 SCC 22, without expressing any view on the merits of the case, I find it to be a case of bail.

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Let the applicant- Gaurav involved in Case Crime No. 450 of 2020, under Sections 363, 376(3) IPC and 3/4 POCSO Act, Police Station Dankaur, District Gautam Budh Nagar be released on bail, on his executing a personal bond and two heavy 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 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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The trial Court is directed to expedite the trial of the present case and conclude the same as expeditiously as possible keeping in view the law laid down by the Apex Court in the case of Alakh Alok Srivastava Vs. Union of India and another, AIR 2018 SC 2440, if there is no legal impediment.

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It is clarified that the observations, if any, 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 ultimate merits of the case."

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Learned counsel for the applicant has further argued that there are material contradictions in the statements under Sections 161 and 164 Cr.P.C. of the prosecution side vis-a-vis the allegations contained in first information report and further she is also entitled to be enlarged on bail in added sections and further there is no recital with respect to the fact that the victim belongs to SC/ST and there was any ingredients constituting violation of S.C./S.T. Act. He has drawn the attention of this Court towards paragraph 12 of the application so as to contend

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that the applicant does not have any criminal history and he is languishing in jail since 19.10.2020.

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Countering the said submissions, learned AGA for the State has opposed the bail and argued that there might be certain contradictions in the statement under Sections 161 and 164 Cr.P.C. and further the fact that the applicant has been enlarged on bail in Sections 363 and 376 IPC and 3/4 POCSO Act on 12.1.2022 in Criminal Misc. Bail Application 11182 of 2021 the same cannot be granted to enlarge him on bail and further possession of no criminal history is also not a relevant factor.

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Considering the submissions so advanced by the learned counsel for the parties on the question of bail, prima facie this Court finds that this is a fit case for grant of bail, in Case Crime No. 450 of 2020, under Sections 363, 376(3) IPC and 3/4 POCSO Act , and the said order still in existence which is not disputed by any of the parties, as also looking into the nature of acquisition, the evidence collected by the I.O, in support of the charge, gravity of offence, nature and severity of the punishment in the case of conviction, complicity of accused and all attending circumstances.

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Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons.

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In the light of the aforenoted discussion and without making any observations on the merits of the case, the bail application is allowed.

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Let the applicant Gaurav involved in aforesaid crime 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 with the following conditions that :-

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i) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.

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(ii) The applicant shall cooperate in the trial sincerely without

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seeking any adjournment.

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

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(iv) 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 to any police officer or tamper with the evidence.

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(v) Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

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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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Any observations made in granting bail to the applicants 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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Taking into consideration that Covid-19 is continuing and due to which certified copy would not be possible to be obtained by the applicant, therefore, if a copy of this order downloaded from the official website of Allahabad High Court and self attested by the counsel for the applicant is placed before the Court, the same would be entertained.

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Order Date :- 9.2.2022 piyush

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Digitally signed by PIYUSH KUMAR Date: 2022.02.10 18:07:32 IST Reason: Location: High Court of Judicature at Allahabad

Gaurav v. State of U.P.

Case brief

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Gaurav v. State of U.P.

Case brief

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