Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32031 of 2021 Applicant :- Ali Sher Opposite Party :- State of U.P.
Counsel for Applicant :- Shams Uz Zaman Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Notice was issued to the opposite party no.2 vide order dated 07.09.2021. As per the office report dated 04.10.2021, a report dated 29.09.2021 of C.J.M. concerned has been received stating therein that notice has been served on the opposite party no.2.
The perusal of the said report shows that notice has been served personally on the opposite party no.2.
No one appears on behalf of the opposite party no.2 even when the matter has been taken up in the revised list.
Heard Sri Shams Uz Zaman, learned counsel for the applicant, Sri U.P. Singh, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Ali Sher, seeking enlargement on bail during trial in connection with Case Crime No. 48 of 2020, under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act, registered at P.S. Loni, District Ghaziabad.
The prosecution case as per the First Information Report lodged on 24.01.2020 by Smt. Dauli the mother of the prosecutrix naming the applicant as the sole accused is that her daughter aged about 16 years has been enticed her away on 18.01.2020 at about 08:30 pm by Ali Sher who is working in tea shop. She was searched a lot but could not be traced.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that in the statement recorded under section 161 Cr.P.C. of the prosecutrix she has stated that she was in love with the applicant and went to her own sweet will and stayed there for 6-
7 days in a rented room wherein physical relationship was established between them. It is argued that subsequently in the statement recorded under section 164 Cr.P.C., under the pressure of police and her parents she gave a different version and stated that the applicant gave her something to eat after which she became unconscious and after regaining consciousness she found herself in a room from where she tried to contact her mother then tauji (the applicant) had committed rape upon her.
It is further argued that the applicant has been falsely implicated in the present case. The prosecutrix is a major girl and had gone with the applicant out of her own sweet will as she stated in the statement under section 161 Cr.P.C. He further argued that the applicant has no criminal history as stated in para 20 of the affidavit and is in jail since 25.01.2020.
Per contra, learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the First Information Report, statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. The prosecutrix has stated that she has no consent of her in the acts. It is argued that she is a minor as per the C.M.O., Ghaziabad who has opined her age about 17 years and as such the bail application of the applicant be rejected.
After having heard learned counsels for the parties and perusing the records, it is evident that the prosecutrix in her statement under Section 164 Cr.P.C. has stated that she was taken away by the applicant after making her unconscious and he committed rape upon her. She is aged about 17 years and is a minor. I do not find it a fit case for bail.
Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail.
The bail application is, accordingly, rejected.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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 :- 26.10.2021 M. ARIF (Samit Gopal, J.)