The Court allowed bail to Subhash under Section 439 Cr.P.C. in an enticement case involving a minor. The Court noted the minor was major at the time of enticement and modesty was not outraged, citing jail overcrowding during the pandemic.
Released on bail by furnishing a personal bond and two sureties.
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Court No. - 92
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39820 of 2021
Applicant :- Subhash Opposite Party :- State of U.P. Counsel for Applicant :- Akhilesh,Dinkar Lal Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
Heard Sri Akhilesh Dinkar Pal learned counsel for the applicant and Sri Shrawan Kumar Ojha, learned AGA for the State through V.C.
This bail application purported to be under Section 439 of the Cr.P.C. has been moved on behalf of applicant Subhash for seeking bail in Case Crime No.377of 2021 under Sections 366 I.P.C. registered at Police Station-Gandhi Park, District-Aligarh.
The bail application of the applicant has been rejected by the court below, on 2.8.2021.
Learned counsel for the applicant has argued that a first information report has been lodged by one Sri Guddu before Station-Gandhi Park, District-Aligarh being FIR No.0377 on 27.6.2021 at 19.32 hours, under Section 363 IPC relating to the commission of offence on 25.6.2021 at 2:00 hours with an allegation that the complainant is the resident of Kamalpur Police Station Gandhi Park, District Aligarh and happens to be the brother of the victim, who is shown to be 13 years of age with a further allegation that one of the neighbours being applicant herein enticed away the sister of the complainant on 25.6.2021 at 2:00 hours and at that relevant point of time one Smt. Rahison w/o Haneef tried to stop the victim, however, she did not stop and she was thereafter enticed away. However, till the evening, when she did not return back then the FIR has been sought to be lodged.
Learned counsel for the applicant has invited the attention of the Court towards the statement of the victim which is annexed as annexure-4 at page 25 of the bail application so as to contend that the victim has made a statement that she is 19 years of age and about 3-4days back, she had gone to her maternal uncle place and from there the victim was enticed away by the applicant. However, he did not outrage the modesty of the complainant and also did not do any bad act. He has further invited the attention of this Court towards page 35 of the bail
application so as to contend that in the statement under Section 164 of the Cr.P.C., the complainant has shown herself to be 18 years of age as per medical report and she has already reiterated the fact that modesty was not outraged and no bad act was committed to her.
Learned counsel for the applicant has argued that he has been falsely implicated in the case in question as from the perusal of the annexure-5 which is medico legal examination report itself shows that there is no sign of force internal on or examination no injury seen on private part. He has just sought to argue that the entire story so sought to be propounded against the applicant in the bundle of lies. He has further argued that the applicant has been falsely implicated and the applicant has been commissioned the said offence and further the fact that he is just a worker in locks factory.
Learned counsel for the applicant has next contended that he has no criminal history while referring to paragraph 15 of the bail application and thus the applicant is languishing in jail since 7.7.2021.
Countering the said submissions, learned AGA for the State has opposed the bail while arguing that in the statements under Sections 161 and 164 Cr.P.C. it has come on record that the applicant has enticed away the victim and merely because he does not have any criminal history or the victim is major and further the fact that the modesty was also not outraged can not in any manner be a ground to grant the bail.
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, as the modesty of the girl has not been outraged and as applicant does not have any criminal history, 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.
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.
In the light of the aforenoted discussion and without making any observations on the merits of the case, the bail application
is allowed.
Let the applicant Subhash 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 :-
i) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
(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.
(v) Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
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.
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.
Order Date :- 4.2.2022 piyush
2 issues framed by the court
Whether bail should be granted in a case involving enticement of a minor where modesty was not outraged.
Whether جائidan's criminal history and lack of injury in the medical report are relevant factors for bail.
Colour shows how this judgement treated each authority
Supreme Court of IndiaReferred¶15
Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons
1 provisions across 1 enactments
Subhash
Vikas Budhwar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Vikas Budhwar
Parties & counsel
