Allahabad High Court
Mukhiya @ Mohd. Jaan vs State Of U.P. And 3 Others on 1 March, 2024
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:38221 Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56888 of 2022 Applicant :- Mukhiya @ Mohd. Jaan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mohd Imdad Siddiqui,Rakesh Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J.
Shri Shrawan 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. 412 of 2021 at Police Station- Kasna, District- Gautam Buddh Nagar under Sections 323, 328, 363, 365, 366, 376-D, 376 (2) (n), 120B IPC and Section 5/6 of POCSO Act. The applicant is in jail since 18.08.2022.
The bail application of the applicant was rejected by the learned trial court on 08.09.2020.
The following arguments made by Shri Mohd. Imdad Siddiqui, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Shrawan Kumar Dubey, learned AGA from the record, entitle the applicant for grant of bail:
1. Learned counsel for the applicant contests the minority of the victim as depicted in the prosecution case.
2. The victim was wrongly shown as a minor of 16 years in the F.I.R. only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.
3. Learned counsel for the applicant contests the age of the victim set out in the prosecution case 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 lawful basis for the age related entry of the victim in the school records. The school records disclosing her age as 16 years 7 months 10 days are unreliable.
(iii) The victim in her statement under Section 161 Cr.P.C. has asserted that she is 17 years of age.
(iv) No medical examination to determine the correct age of the victim as per the latest scientific criteria and medical protocol by eminent doctors from a reputed institution was got done by the prosecution as the same would have established the majority of the victim and falsified the prosecution case. The victim is in fact a major.
4. The victim was intimate with one Shamshad Khan who is a resident of village Samastipur (Bihar).
5. She eloped with the said Shamshad and resided with him at his village for more than one year.
6. The applicant resides in neighborhood of the principal offender Shamshad in Samastipur (Bihar).
7. Apparently the victim and Shamshad became estranged. The victim left for her home in Greater Noida after staying with Shamshad at Samastipur for more than one year.
8. The F.I.R. was got registered by the father of the victim three months after the victim had left her house on 22.04.2021. The applicant was not named in the FIR.
9. The delay in lodgment of the FIR in the facts and circumstances of the case is fatal to the prosecution case.
10. The victim in her statement under Sections 161 Cr.P.C. and 164 Cr.P.C. made one year after the incident has nominated the applicant.
11. False and aggravated allegations were made by the victim in her statements under Section 164 CrPC against the applicant at the behest of her parents only to save the failing prosecution case and deflect attention from her own conduct.
12. The victim was residing freely in Samastipur (Bihar) for more than one year. The victim was never confined or bound down. She was at public places but never resisted the applicant nor raised an alarm. Her conduct shows that she was a consenting party.
13. Major inconsistencies in the F.I.R., statements of the victim under Section 161 Cr.P.C. and under Section 164 Cr.P.C. discredit the prosecution case.
14. Medical evidence to corroborate the commission of rape has not been produced by the prosecution.
15. The applicant does not have any criminal history apart from this case.
16. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to cooperate with the court proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.
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- Mukhiya @ Mohd. Jaan 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.
(iii) While fixing sureties the trial court shall be guided by the judgment of this Court in Arvind Singh Vs State of U.P. Thru. Secretary Home Department (Application U/S 482 No. 2613 of 2023). Since the applicant resides in State of Bihar sureties accepted by the jurisdictional magistrate of his native village shall be accepted by the trial court.
Order Date :- 1.3.2024 Pravin