Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2851 of 2019 Applicant :- Azruddin Opposite Party :- State Of U.P. Counsel for Applicant :- Sunil Vashisth Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Azruddin, in Case Crime No.771 of 2018, under Sections 376(3), 342, IPC, and Section 3/4 POCSO Act, Police Station Khoda, District Ghaziabad.
Heard Sri Sunil Vashisth, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA appearing on behalf of the State.
The submission of the learned counsel for the applicant is that he has been falsely implicated in the present crime. He submits that a perusal of the FIR as well as the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C., show that it is a case of consent. It is argued that the prosecutrix has been opined to be aged about 17 years by the Chief Medical Officer, Ghaziabad vide his certificate dated 12.10.2018, based on an ossification test, which making allowance for the usual variation in age of two years, or even one, would reckon her to be a major. As such, the provisions of the POCSO Act do not apply. It is also submitted that the medico legal report does not show any injury which makes the case incompatible with an allegation of rape.
Learned AGA has opposed the prayer for bail and has pointed out that the prosecution version is consistent in the FIR, the statement of the prosecutrix under Section 161 Cr.P.C., her statement under Section 164 Cr.P.C. and that made to the doctor in confidence during her medical examination where it is said that the prosecutrix was in the bathroom about to take a bath when the applicant intruded into the house and also entered her bathroom and ravished her. He was apprehended by the prosecutrix's mother, who dialled the police facility at Dial 100, but before they could arrive, he escaped from their clutches. The submission is that looking to the consistent case of the prosecutrix, no good ground is made out to enlarge the applicant on bail.
Considering the facts and circumstances of the case, the gravity of the offence, the nature of the allegations, the severity of punishment, and, in particular, the fact that the prosecution case is consistent in the FIR, the statement under Section 161 and 164 Cr.P.C., and the medico legal report, but without expressing any opinion on merits, this Court does not find it to be a fit case for bail at this stage.
The bail application, accordingly, stands rejected at this stage.
However, looking to the period of detention of the applicant, it is directed that trial pending before the concerned court be concluded expeditiously and preferably within six months from the date of receipt of a certified copy of this order in accordance with Section 309 Cr.P.C. and in view of principle laid down in the judgment of the Hon'ble Supreme Court in the case of Vinod Kumar v.
State of Punjab reported in 2015 (3) SCC 220, if there is no legal impediment.
It is made clear that in case the witnesses are not appearing, the concerned court shall initiate necessary coercive measures for ensuring their presence.
Let a copy of the order be certified to the court concerned for strict compliance.
Order Date :- 22.1.2019 NSC