The Allahabad High Court has allowed the bail Application of the accused kidnapping and rape case.
A Single Bench of Justice Rajeev Misra passed this order while hearing a Criminal Misc Bail Application filed by Ashwini.
The application for bail has been filed by applicant Ashwini seeking his enlargement on bail in Case under Sections 363, 366, 376(2) N/376 (3) IPC and Sections 4 (2) 6 Protection of Children from Sexual Offences POCSO Act, P.S Anwala, District Bareilly, during pendency of trial.
The Court noted that,
It transpires from record that in respect of an incident, which is alleged to have occurred on June 28, 2021, a delayed F.I.R dated July 09, 2021 was lodged by first informant Ram Pal (father of the prosecutrix) and was registered as Case Crime under Sections 363, 366, 376(2) N/376 (3) IPC and Sections 4 (2) 6 Protection of Children from Sexual Offences POCSO Act,. In the aforesaid F.I.R, four persons Malo, Pramod, Manoj and Ashwini have been nominated as named accused.
According to the prosecution story, it is alleged that the above-mentioned named accused have enticed away the minor granddaughter of the first informant, aged about 14 years.
Subsequent to aforesaid F.I.R dated March 6, 2021 Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. Prosecutrix was recovered on August 11, 2021. Thereafter, the statement of prosecutrix was recorded under Section 161 CrPC, by the Investigating Officer. Prosecutrix in her aforesaid statement has not supported the prosecution story. The prosecutrix has stated that she herself accompanied the named accused Pramod. She thereafter accompanied Ashwaini and solemnized her marriage with the applicant. Thereafter, they have started residing together as wife and husband. Prosecutrix has further stated that she wants to reside with applicant Ashwaini and her age is about 20 years. Thereafter, the prosecutrix was medically examined.
In her statement before the Doctor, the prosecutrix has reiterated her earlier statement recorded under Section 161 CrPC. However, the Doctor, who examined the prosecutrix, did not find any physical injury on the person of the prosecutrix. However, certain samples were taken from the body of the prosecutrix for pathological examination. The pathological report is negative. Ultimately, the statement of prosecutrix was recorded under Section 164 CrPC. The prosecutrix in her aforesaid statement has reiterated her earlier statement recorded under Section 161 CrPC as well as her statement recorded before Doctor. Further, prosecutrix in her above statement has also stated that no fraud or coercion has been played by applicant. The Investigating Officer upon completion of investigation of aforementioned case crime number has submitted a charge sheet dated October 10, 2021 whereby two of the named accused including applicant have been charge-sheeted.
Counsel for applicant contends that applicant is named as well as charge sheet accused, but he is innocent. Allegations made in F.I.R are false and concocted. Applicant has been falsely implicated in the aforementioned case crime number. As such, the applicant is being falsely prosecuted in the aforementioned case crime number. It is then submitted that co-accused Malo Devi has been enlarged on bail, order dated March 4, 2022.
It is next contended that named and charge-sheeted accused Smt Malo Devi has already been enlarged on bail, vide order dated March 4, 2022. Similarly, another co-accused Pramod has been enlarged on bail order dated February 4, 2022.
On the aforesaid premise, counsel for applicant contends that the case of the applicant is similar and identical to aforesaid co-accused. As such, the applicant is also liable to be enlarged on bail on the ground of parity.
He further contends that there is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforesaid co-accused so as to deny bail to the applicant. It is then contended that prosecution story as unfolded in F.I.R has not been supported by prosecutrix in her statements recorded under Section 161 and 164 CrPC. The medical evidence goes to show that no offence under any of the charging sections has been committed by the applicant upon prosecutrix.
He, therefore, contends that in view of above, no offence under any of the charging sections is made out against the applicant.
He further contends that prosecutrix in her statements recorded under Section 161/164 CrPC has categorically stated that no fraud or coercion has been played by applicant with prosecutrix. Referring to the provisions of Section 421 CrPC, counsel for applicant contends that the prosecutrix/ bride groom is below 18 years of age will not render the marriage void.
It is lastly contended that 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 August 14, 2021. As such, he has undergone more than 61/2 months of incarceration. In case, the applicant is enlarged on bail, he shall not misuse liberty of bail and shall cooperate with the trial. On the aforesaid factual and legal premise, it is thus urged that the applicant is also liable to be enlarged on bail.
Additional Government Advocate and Counsel for first informant have opposed the application for bail. However, AGA could not dispute the factual and legal submissions urged by counsel for the applicant.
“Having heard counsel for applicant, AGA for the state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused and accusation made, but without expressing any opinion on merits of the case, the applicant has made out a case for bail”, the Court observed while allowing the bail application.
The Court ordered that,
Let the applicant Ashwini, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C, may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.
(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court 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 against him in accordance with law.
(v) The trial court may make all possible efforts/endeavours and try to conclude the trial within a period of one year after the release of the applicant.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.