Allahabad High Court
Aarif vs State Of Up And 3 Others on 22 February, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:31857 Court No. - 5 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6411 of 2024 Applicant :- Aarif Opposite Party :- State Of Up And 3 Others Counsel for Applicant :- Ashish Pandey Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Ashish Pandey, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant/opposite party-2 on 04.01.2024. However, inspite of service of notice no one has put in appearance on behalf of opposite party-2 to oppose this repeat application for bail.
4. This repeat application for bail filed by applicant-Aarif seeking his enlargement on bail in Case Crime No.207 of 2022, under Sections 376, 511, 354, 506 I.P.C. and 7/8 POCSO Act, and 3(2)(V)(A) of S.C./S.T. Act, Police Station- Baghpat, District- Baghpat, during the pendency of trial. i.e. Sessions Trial No.52 of 2022 (State Vs. Shahzad and others) now pending in the court of Additional Sessions Judge (POCSO), District Baghpat.
5. The first bail application of applicant was rejected by this Court by a detailed order dated 21.11.2022 passed in Criminal Misc. Bail Application No. 25633 of 2022 (Dinesh @ Toni Vs. State of U.P. and 3 others) and Criminal Misc. Bail Application No. 37934 of 2022 (Aarif Vs. State of U.P. and 3 others). For ready reference, the same is reproduced hereinunder:-
"1. Heard Mr. Nikhil Chaturvedi, Advocate, who has filed his Parcha on behalf of applicant (Dinesh @ Toni) in Court today which is taken on record, Mr. Rajneesh Kumar Upadhyay, the learned counsel for applicant- Aarif and the learned A.G.A. for State.
2. Perused the record.
3. These applications for bail have been filed by applicants, Dinesh @ Toni and Aarif seeking their enlargement on bail in Case Crime No.207 of 2022, under Sections 376, 511, 354, 506 I.P.C. and 7/8 POCSO Act, and 3(2)(V)(A) of S.C./S.T. Act, Police Station- Baghpat, District- Baghpat, during the pendency of trial.
4. At the very outset, the learned A.G.A. submits that notice issued to the opposite party No.2 has been served. However, in spite of service of notice upon opposite party No.2, no one is present on behalf of the opposite party No.2 to press this bail application.
5. Record shows that in respect of an incident which is alleged to have occurred on 14.03.2022, a delayed F.I.R. dated 18.03.2022 was lodged by the first informant Dharam Pal (father of the prosecutrix) and was registered as Case Crime No.207 of 2022, under Sections 376, 511, 354, 506 I.P.C. and 7/8 POCSO Act, and 3(2)(V)(A) of S.C./S.T. Act, Police Station- Baghpat, District- Baghpat. In the aforesaid F.I.R., four persons namely, Dinesh @ Toni(applicant herein), Sahil, Arif (applicant herein) and Shajaad have been nominated as named accused.
6. The gravamen of the allegations made in the F.I.R. is to the effect that named accused with common object dislodged the modesty of the prosecutrix by forcibly committing rape upon her.
7. After lodging of afore-mentioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime in terms of chapter XII of Cr.P.C. He first examined the first informant, Dharm Pal (father of the prosecutrix) who has supported the prosecution story as unfolded in the F.I.R. He thereafter examined the prosecutrix under Section 161 Cr.P.C. wherein the proseuctrix has also not only supported the F.I.R. but has also elaborated the manner in which she was physically assaulted. Thereafter, prosecutrix was requested to have her medical examination. The Doctor who examined the prosecutrix however, did not find any injury on the body of prosecutrix so as to denote commission of sexual violence. The prosecutrix in her statement before the Doctor has reiterated her earlier statement as recorded under Section 161 Cr.P.C. As per the provisional opinion of the Doctor, "there is no sign of forceful penetration so final opinion can be given after FSL available". Certain samples were taken from the body of prosecutrix for pathological examination. However, supplementary medico-legal report of the prosecutrix has not been brought on record.
8. During the course of investigation, Investigating Officer recovered the certificate issued by the Principal Sarvodya Inter College, Pavla Begmabad, Bagpat. As per aforesaid certificate, date of birth of the prosecutrix as recorded in the School record is 12.02.2006. The F.I.R. was lodged on 18.06.2022. As such, prosecutrix was aged about 16 years, 01 month and 05 days on the date of lodging of the F.I.R. Investigating Officer, thereafter examined other witnesses under Section 161 Cr.P.C. who have also supported the F.I.R.
9. Ultimately, on the basis of the above as well as other material collected by Investigating Officer during the course of investigation, he opined to submit the charge-sheet. Accordingly, Investigating Officer submitted the charge-sheet dated 26.04.2022 whereby all the named accused have been charge-sheeted under Sections 376, 511, 354, 506 I.P.C. and 7/8 POCSO Act, and 3(2)(V)(A) of S.C./S.T. Act.
10. Learned counsel for the applicant contends that though the applicants are named as well as charge-sheeted accused but they are innocent. It is next contended that medical evidence does not support the prosecution story as unfolded in the F.I.R. As such applicants are liable to be enlarged on bail. As per the material available on record, the prosecutrix was aged about 16 years of age on the date of alleged occurrence. It is further contended that there is contradiction in the allegations made in the F.I.R. and in the statement of the prosecutrix as recorded under Sections 161/164 Cr.P.C. and the statement given before the Doctor as prosecutrix in her aforesaid statements has gone beyond the basic prosecution case as unfolded in the F.I.R. Lastly, the learned counsel for applicant has drawn the attention of Court to the statement of the witnesses examined under Section 161 Cr.P.C. to point out that in all probability up to this stage the prosecution case is highly improbable. The prosecutrix and named co-accused Dinesh @ Toni were in love affair with each other and thus applicants have been falsely implicated in the crime in question. It is thus urged that in view of above, applicants are liable to be enlarged on bail. Even otherwise, applicants are men of clean antecedents having no criminal history to their credit except the present one. Applicants are in jail since 18.03.2022. As such, they have undergone more than 8 months of incarceration. In case, applicants are enlarged on bail, they shall not misuse the liberty of bail and shall cooperate with the trial.
11. Per contra, the learned A.G.A. has opposed these applications for bail. He submits that applicants are named as well as charge-sheeted accused. As such applicants do not deserve any indulgence by this Court. It is then contended by learned A.G.A. that thought the medical evidence does not support the prosecution story up to this stage but the supplementary medico-legal report is still awaited. As such no final opinion can be concluded on the basis of medical evidence. Learned A.G.A. has then invited the attention of the Court to the statement of the prosecutrix as recorded under Sections 161/164 Cr.P.C. and on basis thereof he submits that prosecutrix has been categorical and consistent in her statements and the manner in which sexual assault was committed upon her. Referring to the judgment of Supreme Court in Phool Chandra Vs. State of Madhya Pradesh 2022 2 SCC 74 he submits that prosecution of accused for an offence under Section 376 I.P.C. can be maintained even on the statement of the prosecutrix/victim provided that statement of the victim/prosecutrix is of impeccable character. There is nothing on record to doubt the reliability or the credibility of the statements of the prosecutrix on account of exaggeration, embellishment or contradiction. It is thus urged that applicants do not deserve any indulgence by this Court.
12. When confronted with above, the learned counsel for applicants could not overcome the same.
13. Having heard the learned counsel for applicants, the learned A.G.A. for State and upon consideration of evidence on record, accusations made as well as complicity of applicant and coupled with the fact that applicants are named as well as charge-sheeted accused, the prosecutrix being categorical and consistent in her statements recorded under Sections 161/164 Cr.P.C. and the manner in which proseuctrix was assaulted, there being nothing on record to infer malicious prosecution of the applicants up to this stage or the credibility of the proseuctrix but without making any comment on the merits of the case, this court does not find any good ground to enlarge the applicant on bail.
14. Accordingly, these applications for bail fail and are liable to be rejected.
15. They are accordingly, rejected.
1. Rejected.
2. For order, see order of date passed in Criminal Misc. Bail Application No.25633 of 2022 (Dinesh @ Toni Vs. State of U.P. And 3 Others)."
6. Learned counsel for applicant contends that subsequent to above order dated 21.11.2022 passed by this Court, the trial of applicant commenced before court below by way of Sessions Trial No.52 of 2022 (State Vs. Shehzad and others) under Sections 376, 511, 504, 506 I.P.C., 7/8 POCSO Act, and Section 3(2)(va) SC/ST Act, Police Station Baghpat, District Baghpat.
7. The first informant Dharmpal deposed before court below as PW1, whereas the prosecutrix deposed before court below as PW2. Both the witness i.e. PW1 (first informant) and PW2 (prosecutrix) have not supported the F.I.R. On the above premise, he therefore contends that once the statements of the first informant and the prosecutrix have been recorded then in that eventuality it cannot be said that in case, applicant is enlarged on bail, the applicant shall either terrorize the witnesses or shall hamper the course of trial. Furthermore, the aforesaid witnesses in their deposition before court below have not supported the F.I.R. Therefore, no good ground exists to prolong the custodial arrest of applicant.
8. 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 18.03.2022. As such, he has undergone more than 1 year and 11 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, it is thus urged 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.
9. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named/charge sheeted accused, therefore he does not deserve any indulgence by this Court. Learned A.G.A. contends that innocence of applicant cannot be inferred simply on the basis of the statements of the first informant and the prosecutrix. The trial is in progress and the evidence of other witnesses to be recorded. He, therefore, contends that considering the nature and gravity of offence coupled with the fact that the prosecutrix is a young girl aged about 18 years, as such, no indulgence be granted by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record at this stage.
10. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that the statements of first informant and the prosecutrix have been recorded before court below as PW1 and PW2, both the witnesses i.e. PW1 (first informant) and PW2 (prosecutrix) have not supported the F.I.R., in view of above, in case, applicant is enlarged on bail then in that eventuality it cannot be said that in case applicant is enlarged on bail he shall either terrorize the witnesses or shall hamper the course of trial, once the prosecutrix in her deposition before court below has not supported the F.I.R., therefore, no good ground exists to prolong the custodial arrest of applicant during the pendency of trial, the police report in terms of Section 173(2) Cr.P.C. has already been submitted on 26.04.2022 against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the clean antecedents of applicant, the period of incarceration undergone, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.
11. Accordingly, the bail application is allowed.
12. Let the applicant-Aarif be released on bail in the aforesaid case crime number on his furnishing a personal bond and 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/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(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 THE HIM/HER 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.
13. 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 :- 22.2.2024 Imtiyaz