Court No. - 79
Case :- CRIMINAL REVISION No. - 1438 of 2021 Revisionist :- Harshit Chikara Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ajay Kumar Mishra Counsel for Opposite Party :- G.A,Pramod Kumar
Hon'ble Rajeev Singh,J.
Heard learned counsel for the revisionist, learned A.G.A. for the State and Shri Pramod Kumar, learned counsel appearing for respondent no. 2.
The present revision has been filed against the judgment and order dated 03.02.2021 passed by Special Judge POCSO Act/Additional District & Sessions Judge, Ghaziabad in Criminal Bail Application No. 676 of 2021 arising out of Case Crime No. 673 of 2019, under Sections 328, 506, 376- D, 384 I.P.C. and Section 5/6 POCSO Act, P.S. Modinagar, District Ghaziabad.
Learned counsel for the revisionist submits that revisionist has falsely been implicated in the present case due to village politics. It is further submitted that the Juvenile Justice Board has wrongly rejected the application of the revisionist without considering the D.P.O. report as also without going through the facts of the case and the evidence collected by the Investigating Officer. The appellate court has also wrongly upheld the order of the Juvenile Justice Board vide impugned order dated 03.02.2021.
As per the prosecution case, the F.I.R. was lodged on 12th July, 2019 under Sections 328, 376, 506 I.P.C. and Section 3/4 POCSO Act with the allegation that in the last year, revisionist along with other accused persons, being a friend of the prosecutrix, called her and provided her some drink after administering some toxic material and in her intoxicated condition, she was raped and some photographs were taken. It is also alleged in the F.I.R. that by blackmailing her, valuable ornaments as also cash were also taken from her. Life threat was also given to her not to disclose anyone.
Submission of the learned counsel for the revisionist is that admittedly, in the F.I.R., which has been lodged by the father of the prosecutrix after one year of the alleged date, no date, time or place is mentioned. It is further submitted that statement of the informant as well as prosecutrix was recorded under Section 161 Cr.P.C., in which, the prosecutrix stated that the tentative time of the alleged incident was August, 2018. It is vehemently submitted by the learned counsel for the applicant that though as per prosecution, video clip was captured by the accused persons and Rs.50,000/- was also taken from her, but when specific question was asked from her about date of incident, she denied. She also stated that she never disclosed anyone about the incident. Thereafter, statement of the prosecutrix was recorded under Section 164 Cr.P.C., in which, she stated that on the request of the co-accused, Shivam, she went with him to the hotel Royal Inn, Modinagar, where revisionist and other co-accused Ashish also met her. She was offered a drink, to which, initially she denied, but on their request, she took the drink and after sometime, she became unconscious. She also stated that she was raped by the revisionist, however, Shivam and Ashish were capturing video of the incident. and thereafter, Ashish left to her house.
Learned counsel for the revisionist submits that when the prosecutrix was unconscious, then how she got to know that she was raped by the revisionist and video was being captured by Shivam and Ashish. It is further submitted that Section 164-A was added in the Cr.P.C. in the year 2006 for the purpose of bringing truth in relation to the rape cases. As in the present case, the incident was reported after more than one year, therefore, the proper medical examination of victim was not conducted and neither the vaginal swab nor DNA profile was taken. He further submits that there is nothing adverse in the D.P.O. report, wherein it is observed that proper counselling and care of the revisionist is needed and he wants to continue his further studies. It is also reported that revisionist does not have any criminal antecedent and there is no occasion that the revisionist will be associated with the criminals, in case, he is released, but these facts were not considered by the court below while passing the impugned order. Learned counsel for the revisionist lastly submits that the other co- accused have already been granted bail and, therefore, as the trial of the case is not going on, the revisionist, who is in jail since 21.07.2019, is also entitled for bail.
Learned A.G.A. as well as learned counsel for respondent no. 2 vehemently oppose the prayer of the revisionist and submit that there is no illegality in the order passed by the Juvenile Justice Board as well as appellate authority and, therefore, revision is liable to be dismissed.
Considering the arguments advanced by the learned counsel for the revisionist, learned A.G.A. as well as learned counsel appearing for respondent no. 2 and going through the statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. along with the statement of the informant, it is undisputed that date of incident is not known to anyone. Further, the Investigating Officer also did not find the same during the course of investigation. It is also undisputed that the F.I.R. was lodged after more than one year and the alleged video, on which, the prosecution story is based, was not recovered.
In view of above facts and circumstances, impugned order dated 03.02.2021 passed by Special Judge POCSO Act/Additional District & Sessions Judge, Ghaziabad in Criminal Bail Application No. 676 of 2021 arising out of Case Crime No. 673 of 2019, under Sections 328, 506, 376- D, 384 I.P.C. and Section 5/6 POCSO Act, P.S. Modinagar, District Ghaziabad, is hereby set aside. The revision stands allowed.
Let the revisionist, Harshit Chikara involved in the aforesaid case crime 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:
(i) The revisionist shall not tamper with the evidence or threaten the witnesses;
(ii) The revisionist through guardian 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;
(iii) The revisionist through guardian 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 of the Indian Penal Code.
Office is directed to communicate this order to the court concerned, forthwith.
Order Date :- 16.12.2021 VKS