Allahabad High Court
Goge Alias Shakil Thru. His Father Raha ... vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 29 February, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:18490 Court No. - 15 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 316 of 2024 Applicant :- Goge Alias Shakil Thru. His Father Raha Matulla Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others Counsel for Applicant :- Sumit Chauhan,Vishwendra Pratap Singh Counsel for Opposite Party :- G.A., Aditya Vikram Shahi Hon'ble Mohd. Faiz Alam Khan,J.
1. Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
Learned A.G.A. informs that he has procured complete instructions in the matter, including upto date case diary, and charge-sheet in this case has already been submitted.
Supplementary affidavit, filed on behalf of the applicant, is taken on record.
2. This application has been moved by the applicant-Goge alias Shakil for grant of anticipatory bail in FIR/Case Crime No.0397 of 2023, under Sections 354, 504, 506 and 376 IPC read with Section 3/4 POCSO Act lodged at police station motipur, district Bahraich.
3. Learned counsel for the applicant submits that the applicant before this court is aged about 14 years and he has been falsely implicated in this case. The FIR of this case has been lodged by the mother of the victim and there was no whisper so far as the commission of rape is concerned. In the statement of the prosecutrix recorded under section 161 CrPC also, there was no whisper so far as the commission of rape is concerned and it was only in her statement recorded under section 164 CrPC that for the very first time the allegations of committing rape has been assigned to the applicant.
4. It is vehemently submitted that it is only on account of enmity of the applicant with the family of the informant a false case has been cooked. The age of the prosecutrix, as shown in the FIR, is 19 years, while as per educational credentials, she is aged about 17 years and, thus, the age of the prosecutrix is disputed and after submissions of charge-sheet the parties have entered into a compromise which has been placed on record by means of the supplementary affidavit filed today. While relying on the written compromise placed on record with the supplementary affidavit filed today, it is submitted that it is admitted by the informant that a wrong information with regard to commission of rape has been given to the concerned police station on the instigation of the villagers and no such incident had occurred. It is also submitted that since the dispute has been compromised/settled, no useful purpose would be served by sending the applicant in prison and it is case of without any evidence as the prosecutrix has also not supported the allegations of the FIR by entering into a compromise and there is no apprehension that after being released on anticipatory bail, the applicant may flee from the course of law or may otherwise misuse the liberty.
5. Learned A.G.A., on the other hand, opposes the prayer of the applicant for grant of anticipatory bail.
6. Learned counsel for the informant submits that it is due to misunderstanding the instant FIR has been lodged against the applicant, however, the parties have settled the dispute by entering into a compromise a copy of which has been placed on record by the applicant by filing a supplementary affidavit today and he, under instructions, is acknowledging all the terms & conditions which have been stated in the compromise filed before this court through the supplementary affidavit.
7. Having heard learned counsel for the parties and having perused the record, it appears to be an admitted case that in the FIR there was no whisper regarding commission of rape and the allegations were confined only to outraging modesty of the prosecutrix. Even in her statement recorded under section 161 CrPC, the prosecutrix/victim did not allege commission of rape, however, in her statement recorded under section 164 CrPC she, for the very first time, has alleged imputation of commission of rape to the instant applicant. The charge-sheet in this case has already been submitted to the juvenile justice board. It also appears to be an admitted situation that the applicant is a juvenile as his age is claimed to be 14 years and charge-sheet in this case has also been submitted before the juvenile justice board. Having regard to the decision of the division bench of this court in leading CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8361 of 2020 (Mohammad Zaid Vs. State of U.P. and another) dated 24.05.2023, the instant anticipatory bail application moved on behalf of the juvenile applicant through his father is maintainable. There appears to be different parameters for considering the plea of grant of bail/anticipatory bail to the juvenile in conflict of law and the primary concern of the court is of the welfare of the juvenile.
8. Having regard to the fact that in the FIR as well as in the statement of the prosecutrix recorded under section 161 CrPC there is no allegation with regard to commission of rape and also that the parties have entered into a compromise which has been filed before this court wherein the prosecutrix has stated in categorical terms that a wrong FIR has been lodged against the applicant, a case for anticipatory bail is made out in favour of the instant applicant.
9. In result, the instant anticipatory bail application moved on behalf of the applicant-Goge alias Shakil is allowed with a direction that in the event of arrest of the applicant under any process of the trial Court or on his/her appearance/surrender before the trial Court within 20 days from today i.e. till 19.03.2024 whichever is earlier, he/she shall be released forthwith on anticipatory bail on furnishing a personal bond of Rs. 50,000/- and two sureties each, by his father- Raha Matulla, in the like amount to the satisfaction of the trial Court, subject to the following conditions:-
(i). The applicant, if not arrested earlier, shall appear before the trial court or the juvenile justice board concerned, as the case may be, within 20 days from today i.e. till 19.03.2024 and cooperate in the trial and shall not seek any adjournment when the prosecution witness would be in attendance.
(ii). In case of further investigation or re-investigation the applicant shall cooperate in the investigation and make himself/herself available as and when required by the Investigating officer of the case, even for the recovery of any fact.
(iii). The applicant shall not make any attempt to influence the prosecution witnesses and will also not commit any crime during his/her release on anticipatory bail.
(iv). The father of the applicant shall file an undertaking to the effect that he/she shall not seek any adjournment on the dates fixed for evidence and specially when the prosecution witnesses are present in court.
(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.
10. If in the opinion of the trial court/juvenile justice baord default of any of the condition placed above 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 shall proceed against him/her in accordance with law.
11. It is clarified that all the observations contained in this order are only for disposal of this anticipatory bail application and shall not affect the trial proceedings in any manner.
Order Date :- 29.2.2024MVS/-