Allowed

Gajendra Singh v. State of U.P. and 3 Others

Allahabad HC18 Apr 2022BAIL/7538/2022

Case brief

AI extract

What is this about?

The High Court granted bail to an applicant charged with offences under IPC 363, IPC 376, and POCSO charges, noting he was not named in the FIR and had already spent over four months in detention. The court imposed strict conditions regarding court attendance and adjournments.

What did the court decide?

Released on bail on personal bond with two sureties subject to conditions regarding court attendance and prohibition of adjournments.

Gajendra Singh Vs State of U.P. and 3 Others — Narcotics (NDPS) | Allahabad HC (2022)

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Court No. - 66

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7538 of 2022

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Applicant :- Gajendra Singh Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Arvind K. Pandey Counsel for Opposite Party :- G.A.,Pradeep Kumar,Vinkesh Ojha

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Hon'ble Rajeev Misra,J.

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Heard Mr. Arvind K. Pandey, learned counsel for applicant, learned A.G.A. for State and Mr. Pradeep Kumar, learned counsel for first informant.

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This application for bail has been filed by applicantGajendra Singh seeking his enlargement on bail in Case Crime No. 295 of 2021, under Sections 363, 376 IPC and Sections 3/4/17 Protection of Children from Sexual Offence Act, P.S. Rajabpur, District Amorha, during the pendency of trial.

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Perused the record.

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Present application for bail came up for orders on 3.3.2022 and this Court passed following order:-

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"Learned AGA has accepted notice on behalf of State.

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Issue notice to the opposite party no.3 within a week by FAX through Chief Judicial Magistrate concerned who will ensure service of notice upon the opposite party no.3 and submit report by the next date fixed in the matter.

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Steps required under law be taken within five days.

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Put up as fresh before the appropriate Bench on 18.4.2022.

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In the meantime, opposite party no.3 may file counter affidavit, if so desires."

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Record shows that in respect of an incident, which is alleged to have occurred on 18.11.2021, a delayed F.I.R. dated 12.11.2021 was lodged by first informant Anand Swaroop and was registered as Case Crime No. 295 of 2021, under Sections 363 IPC, P.S. Rajabpur, District Amorha. In the aforesaid F.I.R., two persons namely Satendra and Adesh alias Babloo have been nominated as named accused.

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The Gravamen of the allegations made in the F.I.R. is to the

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effect that named accused enticed away the minor daughter of first informant namely Suruchi on 18.11.2021 at around 10 p.m. on their motorcycle bearing No. UP23 AD 2934.

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After registration of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. Prosecutrix was recovered on 19.11.2021. Thereafter, the statement of prosecutrix was recorded by Investigating Officer under Section 161 Cr. P. C. Same is on record as Annexure 4 to the affidavit. Prosecutrix in her aforesaid statement has not supported the prosecution story as unfolded in the F.I.R. To the contrary, the prosecutrix has stated that her date of birth is 7.3.2004. She is a student of Class XIIth (Intermediate). She is in love with Satendra Saini, who is resident of the same village. On 18.11.2021 she forcibly took Satendra along with herself. For ten days, they stayed at Massori, thereafter at Allahabad and then at Haridwar. Thereafter, the prosecutrix was requested for her medical examination, to which she agreed. However, no statement of the prosecutrix was recorded before the Doctor who examined her. Accordingly, the prosecutrix was internally/externally medically examined. Upon external examination of prosecutrix, the Doctor opined as follows:-

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"No marks of injury are seen all over the body including buttock and lower part of abdomen at the time of examination."

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Certain samples were taken from the body of the prosecutrix for pathological examination. However, the supplementary medical report of the prosecutrix has not been brought on record. The medico legal report of the prosecutrix is on record as Annexure 5 to the affidavit. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr. P. C., wherein she has reiterated her earlier statement recorded under Section 161 Cr. P. C. with the improvement that she has already solemnized marriage with Satendra at Prayagraj. Same is on record as Annexure 6 to the affidavit.

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During course of investigation, no such document was recovered by Investigating Officer, on the basis of which, the date of birth of the prosecutrix could be affirmed. The prosecutrix in her statement under Section 161 Cr. P. C. has stated that her date of birth is 7.3.2004. As such, prosecutrix was aged about 17 years, 8 months and 11 days on the date of occurrence.

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Investigating Officer on the basis of above, statements of witnesses recorded under Section 161 Cr. P. C. came to the conclusion that complicity of applicant Gajendra, who is not

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named in the F.I.R., is also established in the crime in question. Ultimately, Investigating Officer submitted charge sheet dated 31.12.2021, whereby named accused Adesh alias Babloo has been exculpated, whereas named accused Satendra and not named accused Gajendra have been charge sheeted under Sections 363, 376 and Sections 3/14/17 POCSO Act.

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At the very outset, learned counsel for applicant contends that applicant is not named in the F.I.R., but he is a charge sheeted accused. However, applicant is innocent. Applicant is being falsely prosecuted in aforementioned case crime number. It is next contended that the prosecutrix is a consenting party. Prosecutrix in her statements under Sections 161/164 Cr. P. C. has not supported the prosecution story. As per the statement of prosecutrix recorded under Section 164 Cr. P. C. she has solemnized marriage with Satendra. Even though prosecutrix/bride was below 18 years of age on the date of marriage, yet the said marriage cannot be said to be void as per the provisions of Hindu Marriage Act. It is then contended that no proceedings have been undertaken by prosecutrix for declaration of her marriage with Satendra as void. Prosecutrix has not implicated the present applicant for any such act, on the basis of which charge under Sections 363, 376 IPC and Sections 3/4/17 POCSO Act could be made out against applicant.

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It is lastly contended that applicant is a man of clean antecedents, inasmuch he has no criminal history to his credit except the present one. Applicant has been implicated subsequently in criminal case crime No. 10 of 2020, under Sections 379, 411 IPC, P.S. Naugawan Sadat, District Amroha. Applicant is in jail since 23.12.2021. As such, he has undergone more than 4 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

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Per contra, the learned A.G.A. and learned counsel for first informant have opposed this application for bail. They submit that though applicant is not named in the F.I.R., but he is a charge sheeted accused. As such, applicant does not deserve any sympathy of this Court. Recovery of jewellery belonging to the family of the prosecutrix has been made from present applicant on account of which, Case Crime No. 10 of 2020, under Sections 379, 411 IPC, P.S. Naugawan Sadat, District Amroha has been registered against him. As such, applicant does not deserve any indulgence by this Court. However, they could not dispute the factual and legal submissions urged by learned counsel for applicant.

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Having heard learned counsel for applicant, learned A.G.A. for

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the state, learned counsel for first informant, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused and accusation made, but without expressing any opinion on merits of the case, the applicant has made out a case for bail. Accordingly, bail application is allowed.

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Let the applicant Gajendra Singh involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :-

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(ii) The applicant 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 I.P.C..

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(iii) 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., may be issued and if 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 I.P.C.

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(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

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Order Date :- 18.4.2022 HSM

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Digitally signed by HARI SHANKER MISHRA Date: 2022.04.27 18:10:44 IST Reason: Location: High Court of Judicature at Allahabad

Gajendra Singh v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Gajendra Singh v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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