Allowed

Om Prakas @ Shani v. State of U.P. and 3 Others

Allahabad HC14 Jul 2023BAIL/30711/2023

Case brief

AI extract

What is this about?

Single judge allowed bail to Om Prakash @ Shani, the charge-sheeted accused in a case involving offences under Sections 363, 366, 376 IPC and Pocso Act, imposing conditions including regular court attendance and undertaking against seeking adjournments.

What did the court decide?

Release on bail subject to personal bond with two sureties and conditions regarding court attendance, prohibition on seeking adjournment, and compliance with Section 313 Cr.P.C. proceedings.

Om Prakas @ Shani Vs State of U.P. and 3… — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:140413

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30711 of 2023

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Applicant :- Om Prakas @ Shani Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Renu Sharma Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Rakesh Kumar Maurya, Advocate holding brief of Mrs. Renu Sharma, the learned counsel for applicant and the learned A.G.A. for State.

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This application for bail has been filed by applicant Om Prakash @ Shani seeking his enlargement on bail in Case Crime No.136 of 2023, under Sections 363, 366, 376 IPC and Section 5/6 Pocso Act, police station Dhanghata, district Sant Kabir Nagar, during the pendency of trial.

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Perused the record.

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Record shows that in respect of an incident which is alleged to have occurred on 05.03.2023 a delayed first information report dated 06.03.2023 was lodged by first informant-Kailash Chand (father of the prosecutrix) and was registered as Case Crime No.136 of 2023, under Sections 363, 366 IPC, police station Dhanghata, district Sant Kabir Nagar. In the aforesaid F.I.R., applicant Om Prakash @ Shani has been nominated as solitary named accused.

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The gravamen of the allegations made in the first information report is to the effect that on 05.03.2023 at 5.00 pm, named accused Om Prakash @ Shani, applicant herein enticed away the minor daughter of the first informant i.e. prosecutrix namely X aged about 16 years.

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After aforesaid first information report was lodged, the Investigating OfÏcer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. Thereafter, the statement of the prosecutrix was recorded under Section 161 CrPC, which is on record at page 26 of the paper book. The prosecutrix in her aforesaid statement has stated that she is aged about 23 years. She alone went out of the house on 05.03.2023, thereafter went to Uttarakhand and she used to reside there with the applicant in a rented room. Subsequently, marriage of the prosecutrix was solemnized with the applicant in a temple. She further stated that on account of her marriage with applicant, she has come in

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family way and the age of the fetus is about one month. As per the supplementary medical report, the prosecutrix was found to be in family way and the age of the fetus was said to be six weeks and three days. Thereafter, the statement of the prosecutrix was recorded under Section 164 CrPC wherein the prosecutrix has not supported the F.I.R. but has rejoined her earlier statement recorded under Section 161 CrPC.

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Subsequent to above, the statement of the first informant and other witnesses were recorded under Section 161 CrPC who have substantially supported the F.I.R. On the basis of above and other material collected by the Investigating OfÏcer during he course of investigation, he came to he conclusion that complicity of applicant is fully established in the crime in question. Accordingly, he submitted the charge-sheet dated 05.05.2023.

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It is apposite to mention here that during the course of investigation, no such material was discovered by the Investigating OfÏcer on the basis of which the age of the prosecutirx could be ascertained.

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Learned counsel for the applicant contends that even though the applicant is a named and charge-sheeted accused yet he is liable to be enlarged on bail. The prosecutrix in her statements, reffered to above, has not supported the F.I.R. On account of cohabitation of the applicant with the prosecurix as husband and wife, the prosecutrix had come in family way. As per the supplementary medical report, copy of which is on record at page 28 of the paper book, the age of fetus is about six weeks and three days only. He therefore submits that in view of above, no offence as complained of can be said to have been committed by the applicant. No material has been collected by the Investigating OfÏcer during the course of investigation regarding the date of birth of the prosecutrix either. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. The applicant is in jail since 17.04.2023. As such he has undergone almost three months of incarceration.

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Attention of the Court was also invited to the judgement of the Apex Court in the case of Sumit Subhashchandra Gangwal and another Vs. State of Maharashtra and another, 2023 Livelaw SC 373 (Paragraph 5) and on the basis thereof he submits that since the charge-sheet has been submitted against the applicant, the entire evidence sought to be relied upon by prosecution against applicant stands crystalized. However, up to this stage, no such circumstance has emerged on the basis of which it can be said that custodial arrest of applicant is absolutely necessary during the pendency of trial. It is thus contended by the learned

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counsel for applicant that applicant is liable to be enlarged on bail. In case the 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. has opposed the prayer for bail. He submits that since the applicant is a named as well as charge-sheeted accused therefore, he does not deserve any indulgence by this court. The prosecutrix is a young girl whose modesty was dislodged by the applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for the applicant with reference to the record at this stage.

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Having heard the leaned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made, the submissions urged by the learned counsel for applicant which could not be dislodged by the learned A.G.A. with reference to the record at this stage and coupled with the fact that the marriage of the applicant with the prosecutrix is not void but voidable at the instance of the prosecutrix and no proceedings having been initiated by the prosecutrix for declaration of her marriage with the applicant as void, no such circumstance has been pointed out by the learned A.G.A. that custodial arrest of the applicant is absolutely necessary during the pendency of trial, but without making any comments on the merit of the case, the applicant has made out a case for bail.

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Accordingly, the bail application is allowed.

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Let the applicant Om Prakash @ Shani , 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 sufÏcient 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

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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 sufÏcient 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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(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 :- 14.7.2023. Rks.

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

Om Prakas @ Shani v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Om Prakas @ Shani v. State of U.P. and 3 Others

Case brief

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