In a bail application under Section 439Cr.P.C., the court rejected the prayer for enlargement of bail. The court found no material to disbelieve the victim's statement or presume the applicant's false implication, noting the gravity of the offences and the co-accused's rejected bail.
Bail application rejected; applicant held in judicial custody.
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Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45648 of 2022
Applicant :- Chandan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Viresh Kumar Gupta,Rakesh Chandra Counsel for Opposite Party :- G.A.,Anurodh Tripathi
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and learned counsel appearing on behalf of the first informant.
By means of this application under Section 439 of Cr.P.C., applicant-Chandan, who is involved in Case Crime No. 92 of 2022, under Sections 323, 504, 376D IPC and Sections 5/6, 11/12 and 13/14 Prevention of Children from Sexual Offence (POCSO) Act and Section 67 of Information Technology (Amendment) Act, Police Station Babhani, District Sonbhadra, seeks enlargement on bail during the pendency of trial.
The facts of the case are that the informant who is father of the victim has lodged an FIR on 12.07.2022 at 18:45 hours against Nandan and present applicant Chandan alleging inter-alia that on 16.06.2022 when his daughter, aged about 15-16 years, was returning her home from the school, Nandan forcefully took her to his house by lying that her family members have come to his house and committed rape on her and also threatened to kill. Meanwhile, the present applicant Chandan had made her obscene photos and video and threatened her not to tell anyone and if he did not listen to them, they would make the said video viral. FIR further alleges that the aforesaid accused persons have also sent her obscene photos and video to his relatives where the victim's marriage was going to be settled.
The main substratum of argument of learned counsel for the applicant is that in this case, FIR has been lodged on 12.07.2022 and there is no allegation of rape against the present applicant. He next submits that on 18.06.2022, applicant was not present in his
house as he was in the State of Gujarat, therefore, there was no question of clicking photos and recording the obscene video of the victim on the date of incident i.e. 18.06.2022. The applicant has no concern with this case. The main allegation of rape is against co-accused Nandan. In the third column of the FIR, date of occurrence is mentioned as 18.06.2022 whereas in the body of the FIR, same is mentioned as 16.06.2022. The informant, in order to settle his score, falsely implicated the applicant by making a false and concocted allegation against him. The applicant is languishing in jail since 08.08.2022.
Per contra, learned A.G.A. for the State as well as learned counsel for the informant opposed the prayer for bail of the applicant by contending that the victim is a minor child aged about 16 years. The present applicant Chandan and co-accused Nandan are real brothers. In the FIR, there is specific allegation against the present applicant Chandan that he, in order to blackmail the victim, clicked her obscene photos and video. The victim in her statement under Section 161 and 164 Cr.P.C. has supported the prosecution case giving vivid description of the incident. The victim in her statement has also stated inter-alia that on the pretext of photos and video, both the brothers started blackmailing. Referring the contents of CD No. 12, it is also pointed out that the investigating ofÏcer has also collected obscene photos and video of the victim made by the applicant which were also sent on the mobile phone of relatives of the victim by co-accused Nandan and the same have been saved in a pen-drive and made a part of the case diary. The mobile phone of co-accused Nandan was also recovered by the investigating ofÏcer.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that after culmination of investigation, charge-sheet has been filed against the applicant and co-accused Nandan under Sections 323, 504, 376 (DA) IPC, Sections 5/6, 11/12, 13/14 of POCSO Act and Section 67 of IT Act. I also find that bail application of co-accused Nandan has been rejected by the co-ordinate Bench of this
Court vide order dated 12.01.2023 in Criminal Misc. Bail Application No. 47703 of 2022. There is no material on record to presume that on the date of incident, applicant was in the State of Gujarat. The plea of alibi taken by the applicant is a matter of trial. The investigating ofÏcer has also collected the obscene photos and video of the victim and made the same as a part of case diary. As on date, I do not find any material on record to presume the false implication of the applicant and to disbelieve the statement of the victim.
Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant and severity of punishment, I do not find any good ground to release the applicant on bail.
Accordingly, the bail application is rejected at this stage.
It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.
Order Date :- 22.3.2023 Saurabh
Digitally signed by :- SAURABH KUMAR High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicant is entitled to regular bail during the pendency of his trial for offences under IPC and POCSO.
Whether the plea of alibi and denial of presence at the crime scene establish a prima facie case for bail.
4 provisions across 4 enactments
Chandan
State Of U.P.
Sanjay Kumar Singh
Saurabh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
