Allahabad High Court
Raju Jaiswal vs State Of Up Others on 2 May, 2024
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:79315 Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3173 of 2024 Applicant :- Raju Jaiswal Opposite Party :- State Of Up Others Counsel for Applicant :- Indra Deo Mishra,Pankaj Kumar Tiwari,Shri Ram (Rawat) Counsel for Opposite Party :- Sanjeev Kumar Khare Hon'ble Ajay Bhanot,J.
Matter is taken up in the revised call.
Shri Shravan Kumar Dubey, learned AGA contends that the police authorities in compliance of the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served the bail application upon the victim/legal guardian as well as upon the CWC.
By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 290 of 2023 at Police Station-Bhadohi, District-Bhadohi under Sections 376 IPC & Section 3/4 POCSO Act. The applicant is in jail since 10.12.2023.
The bail application of the applicant was rejected by the learned trial court on 16.01.2024.
The following arguments made by Shri Indra Deo Mishra, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by the Shri Shravan Kumar Dubey, learned AGA from the record, entitle the applicant for grant of bail:
1. The victim was wrongly shown as a minor of 14 years of age in the FIR only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.
2. The age of the victim set out in the prosecution case is refuted in light of the judgement of this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021) and on the following grounds:
(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.
(ii) The age of the victim was incorrectly got registered in the school records by the victim's parents to give her an advantage in life. There is no legal basis for age related entries in the school records. The school records disclosing her age as 14 years are unreliable.
(iii) The victim in her statement under Section 161 and 164 Cr.P.C. has asserted that she is 14 years of age.
(iv) The medical report drawn up to determine the age of the victim opines that she is around 16-18 years of age.
Two submissions are made in regard to the aforesaid medical report. Firstly, the range of error in determining the age is about two years and the same should be read in favour of the applicant at this stage. Secondly, the relevant scientific criteria as per latest medical protocol which would establish the majority of the victim has been excluded from consideration in the medical report. The medical report is flawed. In fact the victim is a major.
3. The F.I.R. is the result of the dispute between the parties over construction of a public road.
4. As per the prosecution case set out in the FIR, the victim was lured with the promise of a toffee/ chocolate to accompany the applicant.
5. It is nigh impossible for a young lady to be lured with the promise of a toffee/ chocolate as per statement under Section 164 Cr.P.C. The prosecution case in inherently false and liable to be disbelieved.
6. Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution.
7. The applicant is a law abiding citizen who cooperated with the police investigations and had joined the trial.
8. The applicant never influenced witnesses or tampered with the evidence.
9. As per the chargesheet the prosecution proposes to examine nine witnesses to bring home the charges. Seven witnesses with material witnesses including the victim has been examined. There is no possibility that the applicant influencing the said witnesses.
10. Continued incarceration of the applicant will disable him from framing an effective defence strategy, gathering evidence in his support thereof and tendering the same before the learned trial court to absolve himself.
11. This Court in Prabhat Gangwar v. State of U.P. (Criminal Misc. Bail Application No.2586 of 2023) while considering the grant of enlarging an accused on bail for preparing his defence and gathering evidence to tender the same before the learned trial court for establishing his innocence held:
"Nature and gravity of the offence is certainly liable to be considered by the court while considering grant of bail. The Court has also to factor the likelihood of whether the accused committed the offence while deciding a bail application. The court also has to determine in the facts of the case whether the accused needs to be set at liberty to frame his defence and gather evidence to refute the prosecution case and establish his innocence. The bail court has to examine whether continued incarceration would disable the accused from tendering an effective defence of his case. This is a demand of processual fairness in criminal jurisprudence.
Setting an accused at liberty at large on this ground cannot be applied mechanically in all cases. The issue has to be considered in the facts and circumstances of each case while doing so. All relevant facts including the evidences in the record, the conduct of the accused during the investigation as well as trial have to be adverted to before a decision is made in this regard."
12. The applicant does not have any criminal history apart from the instant case.
In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant- Raju Jaiswal be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence or influence any witness during the trial.
(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
The learned trial court is directed to fix the sureties after due application of mind in light of the judgement rendered by this Court in Arvind Singh v. State of U.P. Thru. Prin. Secy. Home Deptt. (Application U/S 482 No.2613 of 2023).
The learned trial court shall ensure that the right of bail of the applicant granted by this Court is not frustrated by arbitrary demands of sureties or onerous conditions which are unrelated to the socioeconomic status of the applicant.
Order Date :- 2.5.2024 Anurag/-