Allowed

Sameer v. State of U.P and 3 Others

Allahabad HC31 Jul 2023BAIL/59199/2022

Case brief

AI extract

What is this about?

This High Court allowed a bail application for Sameer, an under-trial accused facing charges of kidnapping, abduction, and sexual assault against minor girls. The Court granted bail citing the lack of corroborative medical evidence, negative pregnancy tests, and jail overcrowding under Article 21, subject to strict conditions.

What did the court decide?

Released on bail by furnishing a personal bond and two sureties subject to conditions of no tampering, strict court attendance, and verification of identity.

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

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Neutral Citation No. - 2023:AHC:152772 Reserved On:- 27.07.2023 Delivered On:- 31.07.2023

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 59199 of 2022 Applicant :- Sameer Opposite Party :- State Of U.P And 3 Others Counsel for Applicant :- Sikandar Khan,Sunil Kumar Dwivedi Counsel for Opposite Party :- G.A.,Gyan Bahadur Singh,Shweta Singh Rana,Vidit Narayan Mishra

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Hon'ble Siddharth, J.

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Heard Sri Sunil Kumar Dwivedi and Sri Sikandar Khan, learned counsels for the applicant; Ms. Shweta Singh Rana, learned counsel for the informant; learned AGA for the State and perused the material placed on record.

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There is allegation in the FIR that grand daughters of the informant aged about 17 years and 13 years had gone to the market but had not returned hence FIR was lodged on 03.11.2022 with the request that their search may be made.

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Learned counsel for the applicant submits that the girls were recovered by the police and their statements were recorded. After recovery both the girls were sent for medical examination but they refused their internal and external medical examination by the doctor. In the statements of the girls recorded under Section 161 Cr.P.C., they stated that they had gone to the mall and since they got late, they stayed in the night on account of fear of their mother. They stated that their father had died. The pregnancy test of both girls were found to be negative. In the statement of

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one girl recorded under Section 164 Cr.P.C., she stated that she is student of class 7^th and she along with her elder sister had gone to Bulandshahar from Noida. They were called by the applicant. She stated that the applicant robbed her Rs. 7,000/- gold earings and nose pin. After selling the jewellery the applicant got Rs. 4,000/- out of which he gave Rs. 1,000/- of them. The applicant, Sameer and co-accused, Amir, are real brothers. They wanted that both sisters should marry them after changing their religion. They took her to village aread where she was given water and drink and thereafter she became unconscious. They were shown a video wherein the applicant and co-accused, Amir, are seen disrobbing and outraging her modesty and also committed sex. Thereafter both the brothers started blackmailing her and tried to upload the video on Instagram. She has stated that she does not knows what happened to her sister.

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Learned counsel for the applicant also submits that co-accused, Shaleem and Amir Kureshi, have already been enlarged on bail vide Criminal Misc. Bail Application Nos. 7696 of 2023 and 58901 of 2022.

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Counsel for the informant has vehemently opposed the bail application and has submitted that both the girls are minor. Date of birth of one is 06.05.2005 and of the other is 08.08.2008. They were lured by the applicant and co-accused who is brother. The other girl has also made similar allegation against the applicant and co-accused.

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After hearing the rival contentions, this Court finds that both the girls are minor. They were called by the applicant and co-accused on phone and they ran away from the house with jewellery and cash. They have made clear allegation of rape against the applicant and co-accused but they have refused to get themselves medically examined, therefore, except their oral allegations against the applicant there is no other

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corroborative medical evidence. No criminal history of the applicant has been pointed out. The victim and their mother have refused their medical examination for which there is no explanation. Pregnancy test of both girls was found to be negative. The applicant is in jail since 10.11.2022 and has no criminal history to his credit.

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On the other hand learned A.G.A has opposed the prayer for bail.

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Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India; considering the dictum of Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 ; considering 5-6 times overcrowding in jails over and above their capacity by the under trials 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, Sameer, involved in Case Crime No. 694 of 2022, under Sections- 363, 366, 328, 385, 376(3), 376-D, 504, 506 IPC and Section 5/6 of POCSO Act and Section 3(2)(v) of SC/ST Act, Police Station- Sector 39, Noida, District- Gautam Buddha Nagar, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

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(i) The applicant shall not tamper with the evidence or threaten the witnesses.

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(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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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(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

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(iv) In case the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the 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 of the Indian Penal Code.

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(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 him in accordance with law.

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In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

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Order Date :- 31.07.2023

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Rohit

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Digitally signed by :- ROHIT DAS High Court of Judicature at Allahabad

Sameer v. State of U.P and 3 Others

Case brief

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Sameer v. State of U.P and 3 Others

Case brief

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