Allowed

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

Allahabad HC6 Jul 2023BAIL/26562/2023

Case brief

AI extract

What is this about?

High Court allowed a repeat bail application for an applicant charged with rape under IPC and POCSO. The Court granted bail observing that prosecution witnesses had not supported the FIR during trial and the applicant had undergone significant incarceration.

What did the court decide?

Applicant Sachin ordered to be released on bail by furnishing personal bond and two sureties under specific conditions.

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

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Neutral Citation No. - 2023:AHC:134159

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26562 of 2023

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Applicant :- Sachin Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Pawan Kumar,Vijay Bahadur Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Vijay Bahadur Yadav, the learned counsel for applicant and the learned A.G.A. for State.

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Supplementary affidavit filed by the learned counsel for applicant in Court today, is taken on record.

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Perused the record.

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This is a repeat application for bail filed by applicant-Sachin seeking his enlargement on bail in Case Crime No. 125 of 2022, under Sections 376, 452, 506 IPC and Section 3/4 POCSO Act, Police Station-Mundha Pande, District-Moradabad during the pendency of trial i.e. Sessions Case No. 1752 of 2022 (State Vs. Sachin) under Sections 376, 452, 506 IPC and Section 4/5 POCSO Act, Police Station-Mundha Pande, District-Moradabad, pending in the Court of Special Jusge, POCSO Act, Court No.2 Moradabad.

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The first bail application of applicant was rejected by a detailed order dated 25.01.2023 passed in Criminal Misc. Bail Application No. 41462 of 2022 (Sachin Vs. State of U.P. and 3 Others). For ready reference, the same is reproduced hereinunder:-

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"Heard Sri Shashi Kant Shukla,learned counsel for the applicant, Sri Rupendra Kumar Mishra learned counsel for the opposite party no.2/first informant, learned A.G.A. for the State and perused the entire record.

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The instant application for bail has been moved on behalf of the applicant, Sachin with the prayer to enlarge him on bail in F.I.R./ Case Crime No.125 of 2022, under Sections 376/ 452/506 I.P.C. and Sections 3/4 Prevention of Children from Sexual Offences Act, Police Station Mundha Pande, District Moradabad, during pendency of the trial.

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Learned counsel for the applicant has submitted that the present innocent

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applicant has been falsely implicated in this case because of his prior acquaintance with the victim, which was even known to the family members of the victim. It is further submitted that the age of victim is about 17 years, who is of mature understanding, therefore, the delay of about five and half months in getting the first information report lodged itself falsify the prosecution story. He has also submitted that though the victim is stated to have carried a pregnancy on account of such relationship, however, when she got ill due to her pregnancy, she was admitted to a hospital. The foetus was found to be dead.

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He has also submitted that though, it was a case of long consensual relationship of the victim with the present applicant, however, the victim has denied the fact of consent and has stated to have been raped by the present applicant by extending threat, which is afterthought and has been averred with a view to falsely implicate the present applicant.

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Learned counsel for the applicant has also submitted that the accused/ applicant is languishing in jail since 07.06.2022 who has no previous criminal history.

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His further submission is that in case, the applicant is enlarged on bail, he will not misuse the liberty of bail and he will also fully cooperate with the trial court in getting the trial concluded expeditiously. He has also submitted that the applicant will not intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.

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Per contra, learned A.G.A. for the State and learned counsel for the first informant have vehemently opposed the prayer for grant of bail by submitting that the date of birth of the victim, according to her educational certificate, is stated to be 05.04.2005 and reckoned accordingly, it was to be below 18 years. They, thus, submit that the victim is a child, therefore, no inference of her consent can be drawn in alleged relationship. The present applicant is next door neighbour of the victim. They have also submitted that the present applicant was named in the first information report, who has committed heinous offence of rape upon the child victim which has adverse societal impact. The victim in her statement recorded under Section 161 Cr.P.C. has stated that the present applicant has committed rape upon her by extending threat. Therefore, the present applicant does not deserve to be enlarged on bail.

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Having heard the learned counsel for the applicant, learned A.G.A. for the State and upon perusal of record, it transpires that the first information report came to be lodged against the present named applicant in respect of alleged offence of rape committed by the present applicant on 11.12.2021. The applicant is a next door neighbour of the victim. The victim is a child aged about 17 years, as per her educational certificate. She has stated in her statement recorded under Section 161 Cr.P.C. that the present applicant has committed rape upon her by extending threat. The nature of alleged offence is heinous, which has an adverse societal effect.

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Thus, having regard to the aforesaid overall facts and circumstances of this case and also keeping in view the arguments advanced on behalf of the parties, nature and manner of commission of offence and evidence

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regarding the complicity of applicant, no case for bail, at this stage, is made out.

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Accordingly, the instant application for bail is rejected.

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However, keeping in view the fact that the applicant is languishing in jail since 07.06.2022, the learned trial court concerned is directed to get the trial concluded with utmost expedition by observing the provisions of Section 35(2) of POCSO Act, without granting any unnecessary adjournments to the parties, preferably within a period of eight months from the date of production of certified copy/computerized copy of this order, in case there is no other legal impediment.

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S.S.P./S.P. and Joint Director Prosecution of the district concerned are directed to ensure that witnesses are present on the date fixed before the trial Court so that their testimonies may be recorded without there being any hindrance.

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Office is directed to communicate this order to the S.S.P/S.P. and Joint Director Prosecution of the district concerned as well as trial court concerned separately for necessary compliance through email/fax, forthwith.

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It is made clear that the trial of the aforesaid case shall be conducted without being influenced by any observation made herein above which are confined to the disposal of the instant bail application."

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Learned counsel for applicant contends that subsequent to the order dated 25.01.2023, the aforementioned trial commenced. The father of the prosecutrix has deposed before court below as PW-1 whereas the prosecutrix has deposed before court below as PW-2. Neither PW-1 nor PW-2 have supported the FIR in their deposition before court below.

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On the above premise, the learned counsel for applicant contends that once the first informant and the prosecutrix have not supported the FIR in their statementw before court below, no useful purpose shall be served by maintaining the custodial arrest of applicant. He, therefore, submits that applicant be enlarged on bail. Even otherwise, applicant is languishing in jail since 07.06.2022. As such, he has undergone almost 1 year of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. It is thus urged that applicant be enlarged on bail.

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Per contra, the learned A.G.A. has opposed the prayer for bail. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

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Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence complicity of applicant, accusations made coupled with the fact that subsequent to the rejection of the first bail application of applicant vide order dated 25.01.2023, the trial commenced before court below, the first informant and the prosecutrix has deposed before court below as PW-1 and PW-2, however, aforesaid witnesses have not supported the FIR in their statements before court below. In view of above, this Court finds that no useful purpose shall be served in maintaining the custodial arrest of applicant inasmuch as, the prosecutrix and the first informant have themselves not supported the FIR in their statements before court below. Apart from above, the Court further find that applicant is languishing in jail since 07.06.2022, as such, he has undergone 1 year of incarceration. The trial is already under progress and the material witnesses have already been examined, but without making any comments on the merits of the case, the applicant has made out a case for bail.

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10. Accordingly, the bail application is allowed .

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Let the applicant-Sachin, be released on bail in the aforesaid case crime number 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 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/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

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(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON,

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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 THE HIM/HER IN ACCORDANCE WITH LAW.

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(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

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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 :- 6.7.2023 Vinay

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Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad

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

Case brief

What is this about?

What did the court decide?

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

Case brief

What is this about?

What did the court decide?

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