Allahabad High Court
Hakku (Major Bail Cancellation) vs State Of U.P. & Anr. on 23 June, 2021
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 12 Case :- BAIL No. - 6343 of 2020 Applicant :- Hakku (Major Bail Cancellation) Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Ashok Kumar Shukla Counsel for Opposite Party :- G.A.,Ashutosh Bajpai Hon'ble Irshad Ali,J.
In view of Covid-19 pandemic, this case is being heard through video conferencing.
Heard Sri Ashok Kumar Shukla, learned counsel for the applicant, learned A.G.A. for opposite party no.1-State and Sri Ashutosh Bajpai, learned counsel for the opposite party no.2.
This is first application for cancellation of bail in case crime no.310 of 2020 under Sections 363, 376 I.P.C. and Section 5-J/6 of the Protection of Children from Sexual Offences Act, 2012, P.S.- Kaiserganj, District Bahraich.
Submission of learned counsel for the applicant for cancellation of bail is that at the time of incident of rape, the prosecutrix was minor and she was raped due to which she became pregnant and the accused person tried to abort the pregnancy by giving medicine to her. He next submits that sufficient material was before the Court Below, but in spite of that, bail has been granted to opposite party no.2. He invites attention of this Court to the complaint lodged against opposite party no.2 as well as statement recorded under Section 161 Cr.P.C. and submits that the statement recorded under Section 161 Cr.P.C. corroborates the allegation levelled under F.I.R. He also submits that medical report also takes notice of pregnancy of 25 weeks and 6 days, therefore, his submission is that the Court Below has committed manifest error of law in granting bail to opposite party no.2 On the other hand, Sri Ashutosh Bajpai, learned counsel for opposite party no.2 submits that he is attending marriage ceremony and is having no brief of bail cancellation application, therefore he is not able to make his submission. He next submits in spite of file is not available, that Court Below has committed no error in granting bail to the opposite party no.2. Court Below has examined medical report as well as statement recorded under Section 161 Cr.P.C. and thereafter, on examination of material available on record it is found that it is fit case for enlargement on bail to the opposite party no.2. Therefore, he submits that the bail cancellation application being misconceived, is liable to be rejected.
Learned A.G.A., on the basis of case-diary, submits that medical report clearly demonstrates that due to rape committed by the opposite party no.2, the prosecutrix became pregnant and the medical report reveals that there is pregnancy of 25 weeks and 6 days, therefore it was not a case for enlargement the applicant on bail. He next submits that Court Below has committed manifest error of law in granting bail to opposite party no.2.
I have considered the submissions advanced by learned counsel for the parties and material on record.
On perusal of order granting bail to opposite party no.2, Court-Below on the basis of assertion that the prosecutrix has aged about 18 to 20 years has proceeded to enlarge the applicant on bail, although there was material in the shape of school certificate incorporating date of birth as 1.1.2004 and as per date of birth incorporated in the certificate, the prosecutrix was minor and under Juvenile Justice Act, she was entitled for grant of benefit being minor in the matter. Court Below enlarging the opposite party no.2 on bail has committed illegality, therefore, it is fit case for cancellation of bail granted to opposite party no.2 Accordingly, this application for cancellation of bail is allowed. Bail order dated 22.7.2020 passed in Bail Application No.879/12A/2020 whereby opposite party no.2 (Gautam Kashyap) has been enlarged on bail, is hereby cancelled. Opposite party no.2 is directed to surrender forthwith. In the event of his failure to surrender within one week from today, C.J.M. Bahraich is directed to issue non-bailable warrant of arrest against him, get him arrest forthwith and lodge him in jail.
The Senior Registrar of this Court is directed to make available copy of the order passed today in Court to the Court-Below for necessary compliance.
Order Date :- 23.6.2021 GK Sinha