Allowed

Waseem Alias Waseem Ahmad and 2 Others v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

Allahabad HC27 Aug 2024/262/2024

Case brief

AI extract

What is this about?

The Hon'ble Court allowed an anticipatory bail application filed by the applicant apprehending arrest in a POCSO case. Based on the victim's statements establishing the applicant's cooperation and lack of criminal antecedent, the interim protection was made absolute with specific conditions.

What did the court decide?

Interim protection granted by coordinate Bench made absolute; applicant to be released on bail by trial court upon summons on furnishing bond and sureties.

Waseem Alias Waseem Ahmad and 2 Others Vs… — Child Sexual Offences (POCSO) | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:58146

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Court No. - 14

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 262 of 2024 Applicant :- Waseem Alias Waseem Ahmad And 2 Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others Counsel for Applicant :- Anuj Dayal Counsel for Opposite Party :- G.A.

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Hon'ble Karunesh Singh Pawar,J.

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The present bail application has been filed by the applicant under Section 438 Cr.P.C. apprehending his arrest in case crime No. 34/2020, under Section 363/366 Indian Penal Code and Section 7/8 of POCSO Act, Police Station Sonwa, District Shrawasti.

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Heard learned counsel for the applicant and learned A.G.A. for the State.

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The coordinate Bench of this Court while granting interim protection to the applicant vide order dated 13.02.2024 has passed the following order:-

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"1. Heard learned counsel for the applicants and learned A.G.A. for the State.

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2. As it is informed by counsel for the applicants as well as learned A.G.A. that bail application No.4523/2023 was decided by this Court on 4.4.2023, as a result, the present anticipatory bail application was listed before this Court in pursuance of order dated 14.12.2023, passed by Hon'ble The Acting Chief Justice.

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3. Learned counsel for the applicant submits that applicants have been falsely implicated in the present case, which was, registered on the written complaint of father of the victim. He further submits that, in the F.I.R., it is alleged that on 6.2.2020, at 4:00 a.m., when victim went outside the house to ease her, applicants enticed her away with the association of other coaccused persons (family members). He also submits that victim was recovered on 9.6.2020 and her statements were recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. and her medico legal examination as well as Ossification test were also conducted. He further submits that in the statement recorded under Section 161 Cr.P.C., she categorically stated that she is having three sisters & four brothers and Sameer is her neighbour, they both like each other but her family members were willing to solemnize her marriage with someone else, as a result, she left the house and went with Sameer to Lucknow, entered into 'nikah' and thereafter, they went to Bhopal where the relative of the Sameer is residing

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and on call of applicant (father of Sameer), they came back. He also submits that victim in her statement recorded under Section 164 Cr.PC. categorically stated that she stayed in Madarsa and was willing to enter into nikah with Sameer, as a result, she left her house and solemnized 'nikah', two to three months back and she also averred that she want to go with her husband Sameer and made her statements without any duress. He also submits that in the ossification test, her age was determined 19 years and certificate was issued by the doctor of District Hospital, Bhinga, Shrawasti.

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4. Learned counsel for the appellant drew attention of the Court on 'Nikahnama' and Certificate of Registration of Marriage, which is, registered before the Marriage Registrar on 6.6.2020 at Lucknow (annexed as Annexure No.7 & 8). He also submits that Misc. Bench No.5328 of 2020 was filed by the applicants alongwith victim for quashing of F.I.R., when victim was called before the court, she stated that she is enjoying her matrimonial life but charge sheet was submitted by the Investigating Officer against Sameer merely on the basis of school leaving certificate without examining contents of date of birth mentioned in the alleged school certificate, under Sections 363, 366 I.P.C. and Section 7/8 POCSO Act. He further submits that during the course of trial, statement of victim was recorded, in which, she changed her version, thereafter, application under Section 319 Cr.P.C. was filed, which was rejected but the said order was challenged in the revision, which was allowed with a direction to the court below to pass fresh order, thereafter, summoning order was passed. He further submits that applicants do not have any criminal antecedent and they always cooperate in the investigation and ready to cooperated in the trial, therefore, they are entitled for interim bail.

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5. Learned A.G.A. vehemently oppose the prayer of the appellant but he does not dispute the fact that final report was submitted against the applicants as they are family members of Sameer and he also does not dispute the fact that in the ossification test, age of the victim was found 19 years.

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6. Considering the arguments of the learned counsel for the applicant as well as learned A.G.A. and going through the contents of the F.I.R., statement of the victim recorded under Sections 161 and 164 Cr.P.C., report of ossification test as well as marriage certificate issued by Marriage Registrar, Lucknow, as in the deposition of the victim recorded under Section 161 and 164 Cr.P.C., she categorically denied the prosecution story, as the F.I.R. quashing was also filed by the applicants, in which, victim was interrogated by the Court but she did not make any statement that she had made her statements under duress, therefore, I am of the view that as an interim measure, in case, the applicant is taken into custody by the Investigating Officer/Investigating Agency then he shall be released forthwith on interim bail after taking personal bond of Rs.50,000/- with the following conditions:-

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(i) The applicants shall make themselves available for interrogation by a police officer as and when required;

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(ii) The applicants shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

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(iii) The applicants shall not leave the District concerned without the

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previous permission of the court.

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7. Issue notice to the private respondent.

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8. List this case on 22.04.2024.

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9. In the meantime, learned A.G.A. may file counter affidavit giving status of the investigation against the applicants."

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Learned counsel for the applicant submits that the applicant has cooperated in the investigation and further undertakes to cooperate in the investigation. It has been informed that all the fact witnesses have been examined.

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Learned A.G.A. has vehemently opposed the bail application.

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On due consideration to the statement of the victim recorded under Section 161 and 164 Cr.P.C., so also the fact that fact witnesses have been examined; the applicant has cooperated in the investigation and further undertakes to cooperate in the investigation; he is not a previous convict, the interim protection granted by the coordinate Bench of this Court vide order dated 13.02.2024 is made absolute in view of dictum of Apex Court in re: Sushila Aggarwal Vs. State (NCT of Delhi)2020 SCC online SC 98 .

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In view of the above, since, charge-sheet in the matter has been filed, if the applicant is summoned to face trial for offence in question, he shall be released on bail by the trial court on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the trial court concerned with the following conditions:-

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(i) The applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or tamper with the evidence;

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(ii) The applicant shall not leave India without the previous permission of the court;

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(iii)The applicant shall not pressurize/ intimidate the prosecution witness;

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(iv)The applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

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(v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;

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Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed.

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It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses.

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In view of the aforesaid, the application is allowed .

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Order Date :- 27.8.2024 R.C.

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Digitally signed by :- RAM CHANDER YADAV High Court of Judicature at Allahabad, Lucknow Bench

Waseem Alias Waseem Ahmad and 2 Others v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

Case brief

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Waseem Alias Waseem Ahmad and 2 Others v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

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