Allowed

Bunty v. State of U.P. and 3 Others

Allahabad HC15 May 2023BAIL/20520/2023

Case brief

AI extract

What is this about?

In this bail application, the High Court examined the applicant's plea for release under IPC and POCSO charges. Considering that no material indicated tampering with evidence or intimidating witnesses, and emphasizing bail as a rule, the court allowed the application subject to strict conditions regarding proximity to the victim and maintaining peace.

What did the court decide?

Applicant released on bail with personal bond and two sureties, subject to conditions: maintain 100m distance from victim, ensure peace, no tampering, no intimidation of witnesses, appearance before c

Bunty Vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:104968

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Court No. - 88

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20520 of 2023

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Applicant :- Bunty Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mayank Yadav,Vivek Kumar Singh Counsel for Opposite Party :- G.A.,Ram Raj Pandey

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Hon'ble Vikram D. Chauhan,J .

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Learned A.G.A. submits that instructions have been received and he has no objection in case the bail application is heard on merits.

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Heard learned counsel for the applicant, learned counsel for the first informant and the learned A.G.A. for the State and perused the record.

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Learned counsel for the applicant submits that previously an F.I.R. was lodged against the applicant u/s 452, 354, 354-B, 376, 511, 506 I.P.C. & section 7/8 of POCSO Act, 2012 at Police Station-Baghpat, District Baghpat and the applicant was released on bail on 28.10.2021. It is further submitted that the present F.I.R. has been lodged noticing the previous F.I.R.'s incident and thereafter it has been alleged that on 03.11.2022 when the daughter of the informant was coming back from the college, the applicant stopped her and asked her to withdraw the case and has threatened her. Statement of the victim was recorded under section 164 Cr.P.C. wherein victim has represented the prosecution case in the F.I.R. and there is no allegation of sexual assault. It is further submitted by learned counsel for the applicant that only allegation against the applicant is that the applicant is trying to pursue the withdrawal of the case. Neither the applicant has touched the girl (victim) as per allegation nor there is any sexual assault, even the victim has not stated in her 164 Cr.P.C. statement that she has been sexually assaulted. Even the ingredients of section 356 I.P.C. is not made out as there is no material with regard to outrage the modesty of the victim. Further submits that although in the statement of the victim, recorded u/s 161 Cr.P.C., the police authorities have recorded that applicant had tried to hold her hand, however the victim in her statement u/s 164 Cr.P.C. recorded before the magistrate concerned has not made any such allegation and as such the previous statement u/s 161 Cr.P.C. would not be relevant at this stage. It is further submitted by learned counsel for

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the applicant that previous criminal history has been explained in paragraph no. 10 & 19 of the affidavit. No offence u/s 7/8 of the POCSO Act is made out against the applicant and there is no allegation of sexual assault. It is further submitted that applicant has been falsely implicated in the present case and he is languishing in jail since 21.02.2023 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial.

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Learned counsel for the informant submits that applicant is a habitual offender and on previous occasion also he had disrespected the daughter of the informant. It is further submitted that on the previous occasion the bail was granted to the applicant on the specific condition that the applicant will not indulge in any sexual offences/activities. On a pointed out query been made to learned counsel for the first informant as to the material circumstances with regard to sexual assault, learned counsel for the informant could not demonstrate from record as to whether the sexual assault has been made on the victim or not. He further submits that as per statement of the victim recorded u/s 164 Cr.P.C. the applicant has threatened her for withdrawing the earlier criminal case.

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Applicant submits that victim in her statement recorded u/s 161 Cr.P.C. stated that applicant has tried to hold the hand of victim. Learned counsel for the first informant has further drawn the attention of the court to the statement of the victim in the previous F.I.R. made before the court concerned, she has stated that on second occasion, which arises out of the present F.I.R. that applicant caught hold the hand of victim. It is to be seen in the present case that there is no material with regard to sexual assault and as such the provisions of section 7/8 of the POCSO Act, prima facie are not made out against the applicant. It is further to be noted that section 354 I.P.C., which is quoted herein below:-

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"Section 354 in The Indian Penal Code

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354. Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine."

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There is no material with regard to any intention of outraging the modesty of girl. The only allegation is with regard to threatening to withdraw the earlier case. It is to be noted that in the present case, statement of the victim in previous criminal case has been recorded before the court concerned on 20.02.2023 and the present F.I.R. was lodged on 07.11.2022. Now the aforesaid stage has also crossed and now the statement of the victim recorded, where she has supported the prosecution story in the previous criminal case. Since the allegation against the applicant is of threatening the victim to withdraw the case, it is imperative to make some conditions so that peaceful living of the victim could not be disturbed by the applicant. Statement u/s 164 Cr.P.C. of the victim, recorded before the Magistrate concerned shows that there is no allegation of holding the hand of victim, subsequently in the statement before the concerned police authorities in previous criminal case, the victim has stated that the applicant has caught hold her hand in subsequent criminal case. Such an allegation made as a result of improvement by tutoring her. At this stage, the same cannot be considered. There is no previous criminal history against the applicant except the cases stated in paragraph no. 10 & 19 of the affidavit.

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Learned AGA has pointed out the criminal antecedents of the Applicant. No material or circumstance has been brought to the notice of this court with regard to tampering of evidence or intimidating of witness in previous criminal cases. In Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed:

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"We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked."

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In the case of Prabhakar Tewari Vs. State of U.P. and another 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against the accused may itself cannot be a basis for refusal of bail.

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In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any material that applicant in past attempted to evade the process of law. If the accused is otherwise found to be entitled

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to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent.

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The principle that Bail is a rule and Jail is an exception has been well recognised by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs Central Bureau of Investigation and another, 2022 (10) SCC 51 . Learned A.G.A. has not shown any exceptional circumstances which would warrant denial of bail to the applicant.

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No material, facts or circumstances has been shown by learned A.G.A. that the accused may tamper with the evidence or witnesses or the accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence.

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12.It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State.

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Learned A.G.A. for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interests of the public or State.

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Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

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Let the applicant-Bunty involved in Case Crime No. 1038 of 2022, under Sections 354, 354-D I.P.C. and Section 7/8 of POCSO Act, Police Station-Baghpat, District-Baghpat be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:-

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1. It is hereby provided that the applicant shall not remain within the periphery of 100 meters of the victim and his family

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members and shall not disturb the peaceful living of the victim and her family members.

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2. The S.H.O. concerned is hereby directed to maintain the peace and tranquillity of the area, where the victim and her family members are residing.

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The applicant will not tamper with the evidence during the trial.

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The applicant will not pressurize/intimidate the prosecution witness.

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The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required.

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The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

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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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The applicant shall not leave India without the previous permission of the Court.

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In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.

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O rder Date :- 15.5.2023 Vibha

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Digitally signed by :- VIBHA SINGH High Court of Judicature at Allahabad

Bunty v. State of U.P. and 3 Others

Case brief

What is this about?

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Bunty v. State of U.P. and 3 Others

Case brief

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