Allahabad High Court
Ankush @ Bholu vs State Of U.P. And 3 Others on 8 April, 2022
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 72 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3731 of 2022 Applicant :- Ankush @ Bholu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Digvijay Tiwari Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Pachori,J.
Rejoinder affidavit filed today by learned counsel for the applicant is taken on record.
Heard Sri Digvijay Tiwari, learned counsel for the applicant, learned AGA for the State and perused the material available on record.
The present bail application has been filed on behalf of applicant - Ankush @ Bholu under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 368/2021, for offence punishable under Sections 363, 376 of the Indian Penal Code and Section 3/4 POCSO Act, registered at Police Station- Inchauli, District - Meerut, during pendency of the trial, after rejecting the bail application of the applicant by Special Judge, (POCSO) Act, Meerut vide order dated 4.1.2022.
Brief facts of the case are that the first information report dated 19.10.2021 has been lodged by the father of the victim against the applicant and another co-accused person stating that on 18.10.2021, the applicant has enticed away his minor daughter aged about 17 years. One Tejveer saw the incident.
After lodging of the first information report, statement of the victim under Section 161 Cr.P.C. has been recorded on 26.10.2021 and the medical examination of the victim has also been conducted on 26.10.2021. The statement of the victim under Section 164 Cr.P.C. has been recorded on 28.10.2021. After recording the statements of the prosecution witnesses, charge has been submitted against the applicant on 22.12.2021. The investigating officer has exonerated the another named co-accused person. The applicant was arrested on 27.10.2021.
Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per the School certificate, age of the victim was about 16 years and 9 months at the time of the incident. As per the allegation of the first information report, age of the victim was 17 years at the time of incident. It is further submitted that there is a material contradiction or improvement between the statements of the victim under Section 161 Cr.P.C. and 164 Cr.P.C. It is further submitted that victim has not supported the prosecution case in her statement recorded under Section 164 Cr.P.C. Victim has gone with the applicant on her sweet and freewill and she solemnized marriage with the applicant on 18.10.2021. Victim has travelled with the applicant to Delhi and Ghaziabad. Victim has denied to get her medical examination. It is further submitted that the applicant has no criminal history.
Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature, but he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
After considering the facts of the present case it prima facie appears that;
(a) The age of the applicant was about 21 years at the time of the incident.
(b) As per the school certificate, the age of the victim was 16 years and 9 months at the time of the incident. As per the first information report, the age of the victim was 17 years at the time of the incident.
(c) There is a material contradiction and improvement between the statements of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C. The victim has not supported the prosecution case in her statement under Section 164 Cr.P.C. It would not be appropriate to discuss the same at this stage.
(d) Victim has gone with the applicant on her sweet and freewill and she solemnized marriage with the applicant.
(e) Victim has travelled with the applicant to Delhi and Ghaziabad.
It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicant - Ankush @ Bholu be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.
(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.
The trial court may make all possible efforts/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.
It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 8.4.2022 Arif