Allahabad High Court
Musheer Khan vs State Of U.P.And Another on 28 April, 2021
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 83 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42331 of 2020 Applicant :- Musheer Khan Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Pankaj Kumar Sharma,Sanjeev Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
This Court is working on virtual mode only due to surge in Covid-19 cases.
As indicated from the documents placed on record by the registry that service of notice upon opposite party no.2 was completed on 19.12.2020. However, no one has appeared.
Heard Sri Pankaj Kumar Sharma through Video Conferencing and learned A.G.A for the State.Applicant - Musheer Khan has approached this Court by way of filing the present Criminal Misc. Bail Application u/s 439 Cr.P.C. seeking enlargement of bail in connection with F.I.R. dated 25.6.2020 arising out of Case Crime No.148 of 2020, under Sections 363, 366, 376 I.P.C and 3/4 POCSO Act, P.S. Sahawar, district Kasganj after rejection of his bail application, vide order dated 5.10.2020, passed by Special Judge, POCSO Act, Kasganj.
It is argued by the counsel for the applicant that he is falsely implicated in the present case. Initially an FIR was lodged against the applicant under Section 363, 366 I.P.C by the father of the victim alleging her abduction. The victim was recovered on 26.6.2020 who in her statement recorded under Section 161 Cr.P.C. has specifically denied about the allegation of rape. Even in her statement recorded under Section 164 Cr.P.C., no allegation was made about the rape. However, in the subsequent statement recorded under Section 161 Cr.P.C., the victim discloses about the sexual relation on her own will with the applicant. The victim has initially denied her medical examination. Later on she was examined but the report does not co-relate with the allegation of rape. It is submitted that it was the case of consensual relationship. The victim has disclosed her age to be 17 years and, therefore, even prima-facie no case is made out under the above referred sections. The applicant has no criminal history and he is in jail since 4.6.2020 and is entitled for bail and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
Learned A.G.A opposed the bail and submitted that the victim is a minor girl which is evident from the school leaving certificate wherein her date of birth is recorded to be 05.01.2005. It is further submitted that in the case of minor even consent has no relevance. There are serious charges against the applicant and as such he is not entitled for bail and in these circumstances, bail application of applicant is liable to be rejected.
Law on bail is well settled that 'Bail is rule and Jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The Court while granting bail in the case involving sexual offence against a woman should not mandate such bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others vs. State of Madhya Pradesh and another, reported in 2021 SCC Online SC 230, decided on 18.3.2021 in this regard.
From the material on record, it is prima facie evident that the applicant is a minor girl who was subjected to sexual assault by the applicant, therefore plea of consent even on the basis of her statement recorded under Section 161 and 164 Cr.P.C., is immaterial as mandate under the sixth description of Section 375 IPC and further considering that in case of bail there is likelihood that the applicant would influence the victim, therefore, no case for bail is made out. The bail application of applicant is hereby rejected.
Order Date :- 28.4.2021 Gaurav