Allahabad High Court
Nanhe vs State Of U.P. And 3 Others on 29 November, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:188262 Court No. - 72 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43829 of 2024 Applicant :- Nanhe Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vikas Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Vikas Srivastava, the learned counsel for applicant-Nanhe and the learned A.G.A. for State.
2. Perused the record.
3. This repeat application for bail has been filed by applicant-Nanhe, seeking his enlargement on bail in Case Crime No. 79 of 2023, under Sections 363, 366-A, 376(3) IPC and Sections 3/4 POCSO Act, Police Station-Wazirganj, District-Budaun during the pendency of trial.
4. At the very outset, the learned A.G.A. submits that notice of this repeat application for bail has been served upon first informant-opposite party-2 on 23.11.2024. However in spite of service of notice, neither any counter affidavit has been filed by opposite party-2 nor any one has put in appearance on his behalf to oppose this repeat application for bail.
5. The first bail application of applicant-Nanhe was rejected by this Court by a detailed order dated 26.07.2023 passed in Criminal Misc. Bail Application No. 29339 of 2023 (Nanhe Vs. State of U.P. and 4 Others). For ready reference, the order dated 26.07.2023 is reproduced hereinunder:-
"1. Heard Mr. Girish Singh, the learned counsel for the 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 15.06.2023. However, inspite of service of notice no one has put in appearance on behalf of opposite party-2 to oppose this application for bail.
4. Record shows that in respect of an incident which is alleged to have occurred on 02.02.2023, a delayed F.I.R. dated 08.02.2023 was lodged by first informant/opposite party-2 Kaisher (father of the prosecutrix) and was registered as Case Crime No. 79 of 2023 under Sections 363, 366A, 376(3) I.P.C., 3/4 POCSO Act, Police Station, Wazirganj, Budaun. In the aforesaid F.I.R. one person namely Nanhe (applicant herein) has been nominated as solitary named accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Nanhe (applicant herein) enticed away the minor daughter of the first informant namely - X aged about 16 years.
6. After aforementioned F.I.R. was lodged, the prosecutrix was recovered on 18.03.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C., which is on record at page 26 of the paper book. The prosecutrix in her aforesaid statement has stated that she herself went to the applicant and thereafter willingly accompanied him to Punjab. The prosecutrix further stated that she wants to reside with the applicant. She further disclosed her age as 18 years. Thereafter, the prosecutrix was requested for her internal examination but the same was refused by her. As per the medical opinion, the age of the prosecutrix was said to be 16 years. The pregnancy test of the prosecutrix was also conducted but the report of the same is said to be negative. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., wherein the prosecutrix has departed her earlier statement recorded under Section 161 Cr.P.C. During course of investigation, Investigating Officer, recovered the Scholar Certificate of the prosecutrix, wherein her date of birth has been recorded as 30.07.2008. As such, prosecutrix was aged about 14 years and 6 months on the date of occurrence i.e. 02.02.2023. Investigating Officer examined the first informant and other witnesses under Section 161 Cr.P.C. and on the basis of above as well as other material collected by him, during course of investigation, he came to the conclusion that offence under Section 366A and 376(3) I.P.C. as well as 3/4 POCSO Act is made out against applicant. Accordingly, he submitted the charge-sheet on 30.03.2023 whereby applicant has been charge sheeted under Sections 363, 366A, 376(3) I.P.C. and 3/4 POCSO Act,
7. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. The prosecutrix is a willing and consenting party as is evident from her statement under Section 161 Cr.P.C. However, the prosecutrix in her subsequent statement under Section 164 Cr.P.C. has departed from her earlier statement. However, the departure so made has not been explained. Medical evidence does not support the implication of the applicant under Section 366A, 376(3) and 3/4 POCSO Act. 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 25.03.2023. As such he has undergone almost 4 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 stands crystallized. In absence of any incriminating circumstance necessitating the custodial arrest of applicant no useful purpose shall be served in prolonging the custodial arrest of applicant. 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 the trial.
8. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicant is a named as well as charge-sheeted accused therefore, he does not deserve any indulgence by this Court. Attention of Court was then invited to the Scholar Certificate of the prosecutrix which is on record at page 29 of the paper book. On the basis of recital contained therein the learned A.G.A. contends that the Scholar Certificate pertains to the same institution whereof the prosecutrix first studied. As such, the correction of the Scholar Certificate cannot be doubted at this stage. As per the said certificate the prosecurtix was aged about 14 years and 6 months on the date of occurrence. Thus, she was below 16 years of age on the date of occurrence. In view of above, the consent of the prosecutrix, if any, is wholly immaterial, in view of the law laid down by the Supreme Court in X (Minor) Vs. State of Jharkhand 2022 Live Law (SC) 194. On the above premise, the learned A.G.A. contends that applicant does not deserve any sympathy of this Court.
9. When confronted with above, the learned counsel for applicant could not overcome the same.
10. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, complicity of applicant, gravity and nature of offence and accusation made coupled with the fact that in view of the submissions urged by the learned A.G.A. as noted above, the prosecutrix was below 16 years of age on the date of occurrence i.e. 02.02.2023, the prosecutrix was in the company of the applicant from 02.02.2023 to 18.03.2023, this conduct of the prosecutrix has not been explained by the applicant, there is nothing on record to infer malicious prosecution of the applicant or to doubt the credibility of the prosecutrix itself, in view of the judgment of the Supreme Court in X (Minor) (Supra), the consent of the prosecutrix, if any, is immaterial but without making any comments on the merits of the case, this Court does not find any new or good ground to enlarge the applicant on bail.
11. In view of above, the bail application fails and is liable to be rejected.
12. It is accordingly rejected."
6. Learned counsel for applicant submits that subsequent to the order dated 26.07.2023, the trial of applicant commenced before Court below by way of Sessions Trial No. 1056 of 2023 (State Vs. Nanhe @ Zishan), under Sections 363, 366-A, 376(3) IPC and Sections 3/4 POCSO Act, Police Station-Wazirganj, District-Budaun. The prosecutrix has deposed before Court below as PW-1 whereas the first informant (Kaisar) has deposed before Court below as PW-2. The depositions of PW-1 and PW-2 have been recorded. On the above premise, the learned counsel for applicant submits that once the statements of prosecutrix and that of first informant have already been recorded before Court below, therefore, in case, applicant is enlarged on bail then in that eventuality, it cannot be said that applicant shall either terrorize the witnesses or shall hamper the course of trial. It is further contended by the learned counsel for applicant that the prosecutrix in her deposition before Court below has not fully supported the FIR. As such, no good ground exists to prolong the custodial arrest of applicant during the pendency of trial. On the above premise, he, therefore, submits that applicant is liable to be enlarged on bail.
7. 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 25.03.2023. As such, he has undergone more than one year and 8 months of incarceration. The police report 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 crystallized. However, up to this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, 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.
9. Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Considering the nature and gravity of offence and also the period of punishment providing for the offence alleged, no sympathy be shown by this Court in favour of applicant. According to the learned A.G.A. even though, this Court is a Superior Court, dictates of prudence require that this Court should not evaluate the evidence, which has emerged during the course of trial as any such exercise undertaken by this Court at this stage may hamper the course of trial and affect the prosecution or the defence. Learned A.G.A. further submits that the prosecutrix has not been declared hostile, therefore, what is the true import of the deposition of PW-1 i.e. prosecutrix is yet to be denuded by Court below. On the above conspectus, the learned A.G.A. submits that no new, good or sufficient ground is made out so as to enlarge the applicant on bail.
10. When confronted with above, the learned counsel for applicant could not overcome the same.
11. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, complicity of accused, accusations made coupled with the fact that since the objections raised by the learned A.G.A. in opposition to the this repeat application for bail could not be dislodged by the learned counsel for applicant with reference to the record, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of the this repeat application for bail, but without making any comments on the merits of the case, this Court does not find any new, good or sufficient ground to enlarge the applicant on bail.
12. As a result, the present repeat application for bail fails and is liable to be rejected.
13. It is, accordingly, rejected.
Order Date :- 29.11.2024 Vinay