Allahabad High Court
Sartaz vs State Of U.P. And 3 Others on 13 December, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:196010 Court No. - 72 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32692 of 2024 Applicant :- Sartaz Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rajiv Kumar Mishra,Sandeep Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Rajiv Kumar Mishra, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
Applicant Sartaz has approached this Court by means of present repeat application for bail seeking his enlargement on bail in Case Crime No. 695 of 2022, under Sections 452, 354, 354A, 376, 511 I.P.C. and Sections 57/8 POCSO Act, P.S. Sardhana District Meerut, during the pendency of trial.
At the very outset, the learned A.G.A. submits that notice of this repeat application for bail has been served upon first informant opposite party 2 on 27.8.2024. However, in spite of service of notice, neither any counter affidavit has been filed by opposite party 2 nor any one has put in appearance on opposite party 2 to oppose this repeat application for bail.
The first bail application of applicant was rejected by this Court by a detailed order dated 11.7.2023 passed in Criminal Misc. Bail Application No. 27839 of 2023 (Sartaz Vs. State of U.P. and 3 others). For ready reference, the order dated 11.7.2023 is reproduced herein under:-
"Heard Mr. Chandra Bhan, the learned counsel for applicant and the learned A.G.A. for State.
This application for bail has been filed by applicant Sartaz seeking his enlargement on bail in Case Crime No. 695 of 2022, under Sections 452, 354, 354Ka, 376/511 IPC and Sections 7/8 POCSO Act, P.S. Sardhana, District Meerut, during the pendency of trial.
Perused the record.
At the very outset, the learned A.G.A. submits that notice of present application has been served upon first informant opposite party 4. However, in spite of service of notice upon opposite party 4, no one has put in appearance on his behalf to oppose this application for bail.
Record shows that in respect of an incident, which is alleged to have occurred on 16.11.2022, a prompt F.I.R. dated 16.11.2022 was lodged by first informant Shekhar Kumar (father of the prosecutrix), which was registered as Case Crime No. 695 of 2022, under Sections 452, 354, 354Ka, 376/511 IPC and Sections 7/8 POCSO Act, P.S. Sardhana, District Meerut. In the aforesaid F.I.R., applicant Sartaz has been nominated as named accused, whereas an unknown person has also been arraigned as an accused.
The gravamen of the allegations made in the F.I.R. is that on 16.11.2022 named accused along with an unknown person entered the house of the first informant and forcibly started dragging the prosecurix, the same was resisted by the prosecutrix. In retaliation thereof her clothes were torn and she was put to ground and attempt was made to forcibly dislodge her modesty by committing rape upon her. On the shouts raised by the prosecutrix, inmates of the house immediately arrived at the place of occurrence, whereuopon the unknown accused ran away on his scooty, whereas named accused Sartaz attempted to run away, but was overpowered.
After the aforementioned F.I.R. was lodged, the statement of the prosecutrix was recorded under Section 161 Cr. P. C., wherein she has supported the F.I.R. Thereafter, the prosecutrix was requested for her medical examination, which was refused by her. Ultimately, statement of the prosecutrix was recorded under Section 164 Cr. P. C., wherein she has rejoined her earlier statement recorded under Section 161 Cr. P. C. Learned counsel for applicant submits that even though applicant is a named accused, but he is innocent. He, therefore, submits that applicant is liable to be enlarged on bail. There is no medical evidence to support the ocular version. of the occurrence as the prosecutrix has refused for her internal medical examination. Applicant has been falsely implicated on account of enmity.
Even otherwise, applicant is a man of clean antecedents, inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 17.11.2022. As such, he has undergone more than 7 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. He, therefore, contends that applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. has opposed the prayer for bail. However, he submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Prima facie, the occurrence giving rise to present criminal proceedings cannot be said to be false. The prosecutrix in her statements under Sections 161/164 Cr. P. C., has remained clear, categorical and consistent, wherein she has clearly implicated the applicant for dislodging her modesty. As per the school record, date of birth of the prosecutrix is 10.6.2006. The incident has occurred on 16.1.2022. As such the prosecutrix was 14 years and 5 month on the date of occurrence i.e. below 16 years of age. Applicant is guilty of dislodging the modesty of the prosecutrix who is a young girl of tender age. Referring to the judgement of Supreme Court in Phool Singh Vs. State of M.P., (2022) 2 SCC, 74, he submits that conviction of an accused for an offence of rape and sexual assault can be maintained, even in the absence of medical evidence and on the solitary statement of the prosecutrix. However, in such a circumstance, the statement of the prosecutrix should be clear, categorical and consistent. When the statements of the prosecutrix referred to above are examined in the light of above mentioned observations, it is explicitly clear that the statement of the prosecutrix when taken as a whole clearly fall in the category of impeccable evidence. Learned A.G.A. thus contends that no sympathy be shown by this Court in favour of applicant.
When confronted with above, the learned counsel for applicant could not overcome the same.
Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made, submissions urged by the learned A.G.A., which could not be dislodged by the learned counsel for applicant with reference to the record at this stage, this Court does not find any good ground to enlarge the applicant on bail.
Accordingly, bail application fails and is liable to be rejected.
Accordingly, bail application is rejected."
Learned counsel for applicant submits that subsequent to the order dated 11.7.2023, the trial of applicant commenced before Court below. The prosecutrix deposed before Court below as P.W. 2. However, the prosecutrix in her deposition before Court below has not supported the F.I.R. Consequently, she has been declared hostile. On the above, premise, the learned counsel for applicant submits that once the proseuctrix herself has not supported the F.I.R., no good ground now exists so as to prolong the custodial arrest of applicant during the pendency of trial. As such, applicant is liable to be enlarged on bail.
Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit. Applicant is in jail since 16.11.2022. As such, he has undergone more than 2 years of incarceration. The charge sheet/police report in terms of Section 173(2) Cr.P.C. has already been submitted against applicant. As such, the entire evidence sought to be relied by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the above conspectus, it is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A. representing State opposite party 1 has vehemently opposed the this repeat application for bail. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that prosecutrix in her deposition before Court below has not supported the F.I.R., therefore, she has been declared hostile, in view of above, once the prosecutrix has herself not supported the F.I.R. no good ground now exists so as to prolong the custodial arrest of applicant during the pendency of trial, the clean antecedents of applicant, period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to be relied by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out any such incriminating circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgement of Supreme Court in Sumit Subhaschandra Gangwar Vs. State of Maharashtra, 2023 LiveLaw SC 373 (Paragraph 5), therefore, irrespective of the objections raised by the learned A.G.A. in opposition to this repeat application for bail, but without making any comment on the merit of the case, applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Sartaz involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C..
(iii) 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., may be issued and if 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 I.P.C.
(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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.
(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 13.12.2024 HSM