Allahabad High Court
Vikas vs State Of U.P. And 3 Others on 23 May, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:114402 Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19460 of 2023 Applicant :- Vikas Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Km Preete Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.
1. Dr. S.B. Maurya, learned AGA-I for the State apprised the Court that on 24.4.2023 notice has been served to the informant of the case.
2. Despite service of notice, none appeared on behalf of the informant.
3. Heard Ms. Km. Preete, learned counsel for the applicant and Dr. S.B. Maurya, learned AGA-I for the State-respondent.
4. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 71 of 2021, under Sections 376-D, 506 IPC and 67 Information Technology Act and 5/6 Protection of Children from Sexual Offences (POCSO) Act, Police Station- Kakod, District- Bulandshahr, during pendency of the trial in the court below.
5. FIR of the present case was lodged against the applicant and three others and according to the FIR, when informant was out from his home along with his son and his wife then co-accused Gaurav enticed away the minor daughter of the informant and co-accused Sajid and Gaurav committed rape with her and applicant prepared videographs and photographs of the victim through his mobile and co-accused Pradeep was standing at the door and all the accused persons threatened the daughter of the informant that we have prepared your videos and if she will inform anybody then her videos will be posted on the internet and when videos of the daughter of the informant were posted on the internet then informant came to know about the incident.
6. Learned counsel for the applicant submitted that entire allegation made against the applicant is totally false and baseless and incident is said to have taken place on 27.2.2021 but FIR was lodged on 18.3.2021 i.e. after about three weeks. She further submitted that there is no allegation of rape against the applicant and only allegation against the applicant is that he prepared indecent videos of the victim.
7. She further submitted that victim in her both the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. also repeated the version of the FIR. She further submitted that co-accused Pradeep has already released on bail by co-ordinate bench of this Court vide order dated 27.5.2022 passed in Criminal Misc. Bail Application No. 22118 of 2021. She placed bail order of co-accused Pradeep during the course of argument, which is taken on record and marked as 'A'. She further submitted that applicant is in jail since 18.3.2021 i.e. for last about more than two years and till date, trial of the case could not be concluded.
8. Per contra, learned AGA opposed the prayer for bail and submitted that it is a case of gang-rape and victim is hardly 11 years' old girl and there is specific allegation against the applicant that he prepared the indecent videographs and photographs of the victim while she was being raped by another accused persons and during investigation, indecent videos of the victim were also recovered, which were alleged to have been prepared by the applicant and in the video, co-accused Sajid @ Rashid was seen while he was committing rape with the victim.
9. He further submitted that case of applicant is distinguishable from the case of co-accused Pradeep as only allegation against the co-accused Pradeep was that he arrived at spot at the time of incident and thereafter he was standing at the door, therefore, considering the seriousness of the allegation, applicant should not be released on bail.
10. I have hard both the parties and perused the record of the case.
11. It is a case of gang-rape and although, allegation of rape was made by the victim against the co-accused Gaurav and Sajid @ Rashid and allegation against the applicant is that he at the time of rape, prepared the videographs and photographs of the victim, which were subsequently posted by the accused persons on the internet.
12. As per Section 376-D IPC, where a woman is raped by one or more persons constituting a group or acting in furtharance of common intention, each of those persons shall be deemed to have committed the offence of rape, therefore, for a gang-rape it is not necessary that each and every accused person commit actual rape with the victim and if they participated in the crime or provided any help in commission of actual rape then also they will be accused for the offence of Section 376-D IPC.
13. The allegation against the applicant is that he was present in the room when co-accused Gaurav forcibly took the victim in the room and he also prepared the videographs and photographs of the victim at the time of rape and the same was recovered during investigation and allegations against the applicant are serious in nature and it appears that he also acted in furtharance of the common intention to commit rape with the other accused persons.
14. Further, although, co-accused Pradeep has been released on bail but case of applicant is distinguishable from him.
15. Although, applicant is in jail for almost two years but minimum punishment provided under Section 376-D IPC and 6 POCSO Act is 20 years, which may also extend upto life imprisonment, therefore, considering the nature of allegation and severity of punishment, in my view applicant is not entitled to be released on bail.
16. Accordingly the instant bail application stands dismissed.
17. However, considering the fact that applicant is in jail in the present matter since May, 2021 i.e. for last about more than two years, trial court is directed to conclude the trial of the case within six months from the production of certified copy of the order passed today by this Court strictly as per the provisions of Section 309 Cr.P.C. and Section 35 POCSO Act.
18. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.
Order Date :- 23.5.2023 KK Patel