Dismissed

Farooq @ Asghar v. State of U.P. and 3 Others

Allahabad HC13 Jul 2023BAIL/3203/2023

Case brief

AI extract

What is this about?

Application for bail filed by Farooq @ Asghar during pendency of trial for offences under IPC 363, 376(3), and POCSO. High Court rejected bail, noting gravity of offence against a minor prosecutrix below 16 years and applicant's lack of sympathetic circumstances to override strict bail guidelines.

What did the court decide?

Application for bail rejected; applicant lodged in police custody or judicial custody continues to remain so.

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

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Neutral Citation No. - 2023:AHC:138955

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3203 of 2023

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Applicant :- Farooq @ Asghar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rakesh Kumar Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Rakesh Kumar Srivastava, the learned counsel for applicant and the learned A.G.A. for State

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Perused the record.

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Office has submitted a report dated 16.03.2023.

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Perused the report of Chief Judicial Magistrate, Ghaziabad.

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Notice of present application for bail has been served upon first informant/opposite party-2. However, in spite of service of notice, no one has put in appearance on behalf of first informant/opposite party-2 to oppose this application for bail.

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Instant bail application has been filed by applicant-Farooq @ Asghar seeking his enlargement on bail in Case Crime No. 216 of 2021 under Sections 363, 366 (3) I.P.C. and 3/4 POCSO Act, Police Station-Khoda, District-Ghaziabad, during the pendency of trial.

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Record shows that in respect of an incident, which is alleged to have occurred on 24.04.2021, a delayed F.I.R. dated28.04.2021 was lodged by first informant Jagdish (father of the prosecutrix) and was registered as Case Crime No. 216 of 2021 under Sections

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363 I.P.C., Police Station-Khoda, District-Ghaziabad. In the aforesaid F. I.R., an unknown person has been arraigned as solitary accused.

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The gravamen of the allegations made in the F.I.R is to the effect that the daughter of first informant namely X went missing on 24.04.2021 at around 8.00AM.

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After aforementioned F.I.R. was lodged, the prosecutrix was recovered on 11.05.2021. Thereafter, her statement under Section 161 Cr.P.C. was recorded, which is on record at page 25 of the paper book. In the aforesaid statement, prosecutrix has not supported the F.I.R. She has further stated that she had gone with applicant Farooq @ Asghar. Subsequently, prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before Doctor has fairly stated that she went with applicant Farooq @ Asghar and has developed physical relation with him. The Doctor, who medically examined the prosecutrix did not find any injury on her body. However, with regard to the private part of the prosecutrix, the Doctor opined as under:

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"Hyman -Torn."

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Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein she has supported the F.I.R. She further stated that she had gone with applicant and applicant made physical relation with her.

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During course of investigation, Investigating Officer obtained requisite certificate from the Institutions concerned where the prosecutrix has last studied. Copy of which is on record at page 36 of the paper-book. As per aforesaid certificate, the date of birth of the prosecutrix as recorded in the School record is 20.02.2008. The

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occurrence giving rise to present applicant has occurred on 24.04.2021. As such, on the date of incident, the prosecutrix was aged about 13 years, 2 months and 8 days. named accused kidnapped the minor daughter of the first informant namely X and in spite of repeated request of first informant for release of his minor daughter (the prosecutrix) no heed was paid by accused.

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During course of investigation, Investigating Officer further examined first informant and other witnesses under Section 161 Cr.P.C. who have supported the F.I.R.. On the basis of above and other material collected by him during course of investigation, he came to the conclusion that offence under Section 376 (3) I.P.C. and Section 3/4 POCSO Act are also made out against applicant. Ultimately, Investigating Officer submitted the charge-sheet dated 07.07.2021 against applicant under dofferemt sections mentioned above.

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Learned counsel for applicant contends that subsequent to submission of the charge-sheet, cognizance was taken upon same by the court concerned and the trial procedure commenced. Resultantly, Sessions Case No. 160 of 2021 (State Vs. Farooq @ Asghar) under Sections 363, 376 (3) Cr.P.C. and Sections 3/4 POCSO Act came to be registered.

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The prosecutrix was examined as P.W.-1. The prosectrix in her statement-in-chief has supported the F.IR. The prosecutrix in her statement-in-chief, stated that the statement under Sections 161/164 Cr.P.C. were made on the dictates of her mother. However in the penultimate part of her statement-in-chief, she has stated that applicant had taken away the prosecutrix and had detained her for 18 days.

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On the above premise, the learned counsel for applicant contends that the prosecution story explained by the prosecution in her statements under Sections 161/164 Cr.P.C. has not been supported in her deposition before court below.

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Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 12.05.2021. As such, he has undergone more than two years of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted. Therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised. The trial has already commenced and the statement of the prosecutrix has already been recorded. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the cumulative strength of above, he submits 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 it is undisputed fact that on the date of occurrence, the prosecutrix was aged about 13 years, 2 months and 18 days. He has then invited the attention of Court to the School Certificate of the prosecutrix and on basis thereof, he submits that the prosecutrix was below 16 years on the date of occurrence. Therefore, submissions urged by learned counsel for applicant are wholly misconceived. He further submits that the prosecutrix in the penultimate part of her statement-in -chief before court below has supported the prosecution story.

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No explanation has been offered by the applicant for the same.

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The prosecutrix was below 16 years of age on the date of occurrence, applicant do not deserved any sympathy of this Court. On the cumulative strength of above, he submits that present application for bail is liable to be rejected

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When confronted with above, the learned counsel for applicant could not overcome the same.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant and the submission urged by the learned A.G.A. which could not be dislodged by the learned counsel for applicant with reference to the record, no good ground has been made out to enlarge the applicant on bail.

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As a result, present application fails and is liable to be rejected.

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It is accordingly rejected.

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Order Date :- 13.7.2023 YK

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

Farooq @ Asghar v. State of U.P. and 3 Others

Case brief

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Farooq @ Asghar v. State of U.P. and 3 Others

Case brief

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