Allahabad High Court
Abdullah vs State Of Up And 3 Others on 16 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:88659 Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18935 of 2024 Applicant :- Abdullah Opposite Party :- State Of Up And 3 Others Counsel for Applicant :- Alauddin,Fakhruddin Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Alauddin Khan, the learned counsel for applicant and the learned A.G.A. for State
2. Perused the record.
3. This repeat application for bail has been filed by applicant-Abdullah seeking his enlargement on bail in Case Crime No. 14 of 2023 under Sections 363,366, 376 I.P.C. and Sections 3/4 POCSO Act. Police Station-Mishrauliya, District-Siddharth Nagar, during the pendency of trial.
4. At the very outset, the learned A.G.A. submits that notice of present bail application has been served upon first informant/opposite party-4 on 10.05.2024. However, inspite of service of notice, no one has put in appearance on behalf of opposite partuy-4 to oppose this application for bail.
5. First bail application of applicant was rejected by this Court by a detailed order dated 05.07.2023 passed in Criminal Misc. Bail Application No. 19073 of 2023 (Abdullah Vs.State of U.P. and 3 other.) For ready reference, same is reproduced herein under:-
"Heard Mr. Shahroze Khan, the learned counsel for applicant, the learned A.G.A for State and Mr. Sandeep Mani Ji Bakshi, the learned counsel for first informant.
This application for bail has been filed by applicant Abdullah seeking his enlargement on bail in Case Crime No. 14 of 2023 under sections 363, 366, 376 IPC, Police Station- Mishrauliya, District-Siddharth Nagar, during the pendency of trial.
Record shows that in respect of an incident which is alleged to have occurred on 4.2.2023, a belated FIR dated 6.2.2023 was lodged by first informant Tilak Ram and was registered as Case Crime No. 14 of 2023 under sections 363, 366, 376 IPC, Police Station- Mishrauliya, District-Siddharth Nagar. In the aforesaid FIR, an unknown person has been arraigned as solitary accused.
The gravamen of the allegations made in the F.I.R. is to the effect that nephew of the first informant namely, X aged about 17 years had gone out of home on 4.2.2023 at around 6:30 pm. However, she did not return home. Inspite of hectic search made to locate her whereabouts, no clue regarding her whereabouts were gathered.
After aforementioned F.I.R. was lodged, Investigating officer proceeded with statutory investigation of concerned case crime number in terms of chapter XII Cr.P.C. The prosecutrix was recovered on 7.2.2023. Thereafter the statement of the prosecutrix was recorded under section 161 Cr.P.C. Same is on record at page 31 of the paper book. The prosecutrix in her aforesaid statement has supported the F.I.R. by stating that applicant forcibly took the prosecutrix on his motorcycle to nearby village Algi in Nepal. She has further stated that the prosecutrix remained in the house of the Bua of the applicant and ultimately she was recovered on 7.2.2023 when the uncle (chacha), mother of applicant and few other villagers came to recollect her.
Thereafter the prosecutrix was requested for her medical examination, which is on record at page 48 of the paper book.
The prosecutrix in her statement before the Doctor has departed from her earlier statement recorded under section 161 Cr.P.C. and has now stated that she herself accompanied the applicant, willingly. She has further stated that no indecent and immoral act was performed by applicant. However, the Doctor who examined the prosecutrix has opined as follows with regard her private part:
"Old Torn, healed hymen"
However, no signs were found on the body of the prosecutrix so as to denote the commission of sexual assault. Certain samples were taken from the body of the prosecutrix for pathological examination. However, the result of the same are negative. As per the medical opinion, the prosecutrix is said to be aged about 19 years.
Ultimately, the statements of the prosecutrix was recorded under section 164 Cr.P.C., which is on record at page 34 of the paper book. The prosecutrix in her aforesaid statement has supported the F.I.R. but has not implicated the applicant for having dislodged her modesty.
During course of investigation, Investigating Officer examined first informant and other witnesses under section 161 Cr.P.C. The witnesses so examined have supported the F.I.R. Investigating Officer further recovered the high school certificate cum marksheet of the prosecutrix wherein her date of birth is recorded as 15.4.2006. The occurrence giving rise to present proceedings is of 4.2.2023. As such, prosecutrix was aged about 16 years and 10 months on the date of occurrence. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that provisions of POCSO Act are also attracted in the present case. He accordingly submitted the charge-sheet against applicant under aforementioned sections.
Learned counsel for applicant contends that though the applicant is a named as well as charge sheeted accused, yet he is liable to be enlarged on bail.
Referring to the statements of the prosecutrix, recorded under sections 161/164 Cr.P.C., he submits that prosecutrix has not supported the F.I.R. inasmuch as she has remained inconsistent. As per the statements of prosecutrix, her modesty was not dislodged by the applicant. Even otherwise, applicant is a man of clean antecedents inasmuch as he has not criminal history to his credit, except the present one. Applicant is in jail since 17.2.2023. As such, he has undergone, more than five months of incarceration. The police report in terms of section 173 (2) Cr.P.C has already been submitted and therefore the entire evidence sought to be relied upon by prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged, necessitating the custodial arrest of applicant during the pendency of trial. 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 young boy aged about 19 years. In case he is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. As such, applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A for State and Mr. Sandeep Mani Ji Bakshi, the learned counsel for first informant have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. The prosecutrix is a young girl, aged about 16 years and 10 months, as such, her consent, if any, is wholly immaterial. The medical evidence does not support the innocence of the applicant. On the above premise, learned A.G.A. submits that no sympathy be shown by this Court in favour of applicant.
Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant, coupled with the fact that medical evidence does not support the innocence of applicant, the prosecutrix was only 16 years and 10 months of age on the date of occurrence, in view of high school certificate cum mark-sheet of the prosecutrix, the medical opinion regardin the age of the prosecutrix is not liable to be considered, 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.
Resultantly, the application fails and is liable to be rejected.
It is accordingly rejected. "
6. The second bail application of applicant was also rejected by this Court by a detailed order dated 29.01.2024 passed in Criminal Misc. Bail Application No. 50097 of 2023 (Abdullah Vs. State of U.P. and 3 others). For ready reference, the said order is reproduced herein under:
"1. Heard Mr.Shesh Nath Bhatt. the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This repeat application for bail has been filed by applicant-Abdullah seeking his enlargement on bail in Case Crime No. 14 of 2023 under sections 363, 366, 376 IPC, Police Station- Mishrauliya, District-Siddharth Nagar during the pendency of trial
4. First bail application of applicant was rejected by this Court by a detailed order dated 05.07.2023 passed in Criminal Misc. Bail Application No. 19073 of 2023 (Abdullah Vs.State of U.P. and 3 other.) For ready reference, same is reproduced herein under:
" Heard Mr. Shahroze Khan, the learned counsel for applicant, the learned A.G.A for State and Mr. Sandeep Mani Ji Bakshi, the learned counsel for first informant.
This application for bail has been filed by applicant Abdullah seeking his enlargement on bail in Case Crime No. 14 of 2023 under sections 363, 366, 376 IPC, Police Station- Mishrauliya, District-Siddharth Nagar, during the pendency of trial.
Record shows that in respect of an incident which is alleged to have occurred on 4.2.2023, a belated FIR dated 6.2.2023 was lodged by first informant Tilak Ram and was registered as Case Crime No. 14 of 2023 under sections 363, 366, 376 IPC, Police Station- Mishrauliya, District-Siddharth Nagar. In the aforesaid FIR, an unknown person has been arraigned as solitary accused.
The gravamen of the allegations made in the F.I.R. is to the effect that nephew of the first informant namely, X aged about 17 years had gone out of home on 4.2.2023 at around 6:30 pm. However, she did not return home. Inspite of hectic search made to locate her whereabouts, no clue regarding her whereabouts were gathered.
After aforementioned F.I.R. was lodged, Investigating officer proceeded with statutory investigation of concerned case crime number in terms of chapter XII Cr.P.C. The prosecutrix was recovered on 7.2.2023. Thereafter the statement of the prosecutrix was recorded under section 161 Cr.P.C. Same is on record at page 31 of the paper book. The prosecutrix in her aforesaid statement has supported the F.I.R. by stating that applicant forcibly took the prosecutrix on his motorcycle to nearby village Algi in Nepal. She has further stated that the prosecutrix remained in the house of the Bua of the applicant and ultimately she was recovered on 7.2.2023 when the uncle (chacha), mother of applicant and few other villagers came to recollect her.
Thereafter the prosecutrix was requested for her medical examination, which is on record at page 48 of the paper book.
The prosecutrix in her statement before the Doctor has departed from her earlier statement recorded under section 161 Cr.P.C. and has now stated that she herself accompanied the applicant, willingly. She has further stated that no indecent and immoral act was performed by applicant. However, the Doctor who examined the prosecutrix has opined as follows with regard her private part:
"Old Torn, healed hymen"
However, no signs were found on the body of the prosecutrix so as to denote the commission of sexual assault. Certain samples were taken from the body of the prosecutrix for pathological examination. However, the result of the same are negative. As per the medical opinion, the prosecutrix is said to be aged about 19 years.
Ultimately, the statements of the prosecutrix was recorded under section 164 Cr.P.C., which is on record at page 34 of the paper book. The prosecutrix in her aforesaid statement has supported the F.I.R. but has not implicated the applicant for having dislodged her modesty.
During course of investigation, Investigating Officer examined first informant and other witnesses under section 161 Cr.P.C. The witnesses so examined have supported the F.I.R. Investigating Officer further recovered the high school certificate cum marksheet of the prosecutrix wherein her date of birth is recorded as 15.4.2006. The occurrence giving rise to present proceedings is of 4.2.2023. As such, prosecutrix was aged about 16 years and 10 months on the date of occurrence. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that provisions of POCSO Act are also attracted in the present case. He accordingly submitted the charge-sheet against applicant under aforementioned sections.
Learned counsel for applicant contends that though the applicant is a named as well as charge sheeted accused, yet he is liable to be enlarged on bail.
Referring to the statements of the prosecutrix, recorded under sections 161/164 Cr.P.C., he submits that prosecutrix has not supported the F.I.R. inasmuch as she has remained inconsistent. As per the statements of prosecutrix, her modesty was not dislodged by the applicant. Even otherwise, applicant is a man of clean antecedents inasmuch as he has not criminal history to his credit, except the present one. Applicant is in jail since 17.2.2023. As such, he has undergone, more than five months of incarceration. The police report in terms of section 173 (2) Cr.P.C has already been submitted and therefore the entire evidence sought to be relied upon by prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged, necessitating the custodial arrest of applicant during the pendency of trial. 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 young boy aged about 19 years. In case he is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. As such, applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A for State and Mr. Sandeep Mani Ji Bakshi, the learned counsel for first informant have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. The prosecutrix is a young girl, aged about 16 years and 10 months, as such, her consent, if any, is wholly immaterial. The medical evidence does not support the innocence of the applicant. On the above premise, learned A.G.A. submits that no sympathy be shown by this Court in favour of applicant.
Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant, coupled with the fact that medical evidence does not support the innocence of applicant, the prosecutrix was only 16 years and 10 months of age on the date of occurrence, in view of high school certificate cum mark-sheet of the prosecutrix, the medical opinion regardin the age of the prosecutrix is not liable to be considered, 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.
Resultantly, the application fails and is liable to be rejected.
It is accordingly rejected. "
5. Learned counsel for applicant submits that statement of first informant Tilakraj (P.W.-1) and that of the prosecutrix (P.W.-2) have already been recorded. He therefore submits that in view of above, no useful purpose shall be served in prolonging custodial arrest of applicant. 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 17.02.2023. As such, he has undergone more than eleven months of incarceration. He therefore contends 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 trial.
6. Per contra, the learned A.G.A. for State has opposed this second application for bail. He submits that the prosecutrix in her statement before court below has fully supported the F.I.R. In view of above, no good ground exists to enlarge the applicant on bail. The prosecutrix is a young girl aged about 16 years and 10 months whose modesty has been repeatedly dislodged by applicant. As such, no indulgence be granted by this court in favour of applicant.
7. When confronted with above, the learned counsel for applicant could not overcome the same.
8. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that objections raised by the learned A.G.A. in opposition to this application for bail could not be dislodged by the learned counsel for applicant, therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of present repeat application for bail, this Court does not find any new or good ground to enlarge the applicant on bail.
9. The present repeat application for bail thus fails and is liable to be rejected.
10. It is accordingly rejected.
Order Date :- 29.1.2024 "
7. The above order dated 29.01.2024 stands corrected vide order dated 08.02.2024. For ready reference the order dated 08.02.2024 is extracted herein under;
". Heard Mr. Shesh Nath Bhatt, the learned counsel for applicant and the learned A.G.A. for State.
2. This correction application has been filed by applicant-Abdullah seeking correction in the order dated 29.01.2024.
3. Learned counsel for applicant submits that in the 3rd paragraph of the order dated 29.01.2024, Sections 3/4 POCSO Act have not been transcribed after the description IPC.
4. It is then contended that in the 2nd line of 5th paragraph, the name of PW-1 has wrongly been transcribed as "Tilakraj" whereas the correct name is "Tilakram". He, therefore, submits that aforesaid inadvertent mistakes occurring in the order dated 29.01.2024 be corrected accordingly.
5. Prayer made by the learned counsel for applicant is bona-fide. Same is not opposed by the learned A.G.A.
6. Accordingly it is allowed.
7. It is thus provided that after the description "IPC" occurring in the 3rd line of the 3rd paragraph of the order dated 29.01.2024, the description "Sections 3/4 POCSO Act" shall also be read.
8. Similarly, in place of the description "Tilakraj" occurring in the 2nd line of 5th paragraph of the order dated 29.01.2024, the description "Tilakram" shall be read.
9. This correction shall from part of the earlier order dated 29.01.2024.
10. With the aforesaid directions, this correction application stands finally disposed off.
Order Date :- 8.2.2024 "
8. Learned counsel for applicant contends that the trial of applicant commenced before court below by way of Sessions Case No. 296 of 2023 (State Vs. Abdullaha) under Section 363, 366, 376 I.P.C. and Sections 3/4 POCSO Act, Police Station-Mishrauliya, District-Siddharth Nagar. Upto this stage three prosecution witnesses of fact namely P.W.-1 Tilakram, P.W.-2 the prosecutrix and P.W.-3 Geeta mother of the prosecutrix have been examined before court below. However, as per deposition of the aforesaid witnesses it cannot be conclusively concluded that complicity of applicant in the crime in question is fully established. On the above premise, the learned counsel for applicant submits that applicant is liable to be enlarged on bail.
9. 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 custody since 17.02.2023. As such, he has undergone more than one years and two months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the cumulative strength of above, the learned counsel for applicant submits 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.
10. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits upon perusal of the statements of three prosecutions witnesses of fact, who have deposed before court below it cannot be conclusively concluded that complicity of applicant is not fully established in the crime in question. Furthermore, the three prosecution witnesses of fact examined upto this stage have not been declared hostile by court below. According to learned A.G.A. even though, this court is a superior court, dictates of prudence require that no such exercise of evaluating the evidence which has emerged during the pendency of trial be undertaken by this Court. Any exercise regarding above undertaken by this Court will amount to per-empting the trial and may prejudice the prosecution or defence. On the above premise, the learned A.G.A. submits that no new, good or sufficient ground has emerged so as to enlarge the applicant on bail.
11. When confronted with above, the learned counsel for applicant could not overcome the same.
12. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant, coupled with the fact that objections raised by the learned A.G.A. in opposition of this repeat application for bail could not be dislodged by the learned counsel for applicant with reference to the record, therefore irrespective of the submissions raised by the learned counsel for applicant in support of present repeat application for bail but without expressing any opinion on the merits of the case, this court finds that no new, good or sufficient ground has emerged so as to enlarge the applicant on bail.
13. As a result, present repeat application for bail fails and is liable to be rejected.
14. It is accordingly rejected.
Order Date :- 16.5.2024 YK