Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21724 of 2021 Applicant :- Mohammad Aazam Opposite Party :- State of U.P.
Counsel for Applicant :- Manish Pandey,Radhey Krishna Pandey Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Manish Pandey, learned counsel for the applicant, Sri Gyanendra Pratap Singh, learned counsel for the first informant, Sri Bare Lal Bind, learned brief holder for the State and perused the material on record.
Sri Gyanendra Pratap Singh states that he will file his Vakalatnama on behalf of the first informant today in the office.
If said vakalatnama is filed by Sri Gyanendra Pratap Singh, learned counsel for the first informant, office is directed to trace out the same and place it on record and make a note about it in the order sheet.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Mohammad Aazam, seeking enlargement on bail during trial in connection with Case Crime No. 889 of 2020, under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, registered at P.S. Handia, District Prayagraj.
The prosecution case as per the F.I.R. lodged by Radheshyam Bind the father of the prosecutrix, on 16.11.2020 at about 19:07 hours under Sections 363, 366 I.P.C., is that on 14.11.2020 his daughter aged about 17 years went missing while she was doing normal household work outside the house at about 09.00A.M. She was searched a lot but she could not be traced. He searched her in the nearby vicinity and went to his relatives' house and even she was tried to be contacted on phone but she could not be looked into. The first informant then checked her bag in which he found a mobile phone, it was seen and it was discovered that it had two numbers of Rakesh Kumar Gaur. He has raised suspicion that Rakesh Kumar Gaur has enticed away his daughter. The F.I.R. has been thus registered.
Learned counsel for the applicant argued that the prosecutrix went from her house on 14.11.2020 and returned back on 4.12.2021 and in the period between she lived with the applicant for about 20 days without any resistance whatsoever. It is argued that in the statements recorded under Sections 161 and 164 Cr.P.C. the prosecutrix has stated that she met the applicant while filling form in the school after which he gave a mobile phone to her, on which she used to talk to him since the last 3-4 months and in that period the applicant committed rape upon her. It is argued that on the date of incident the applicant called her outside the village and when she went there he took her with him to Allahabad and they lived there for 3-4 days after which the applicant took her to Chitrakoot and they lived there and even roamed at the other places for ten days and then he abandoned her, after which she called her parents by the phone of unknown person and then her father and uncle came there and rescued her.
It is argued that the allegations therein are false and the prosecutrix went with the applicant out of her own sweet will without any force and lived with him without any resistance. It is argued that the doctor has opined the radiological age of the prosecutrix as above 18 years and below 20 years. It is further argued that the medical evidence does not support the prosecution case. The prosecutrix is a consenting party and she has travelled to distant places with the applicant without any resistance and out of her own sweet will. It is argued that the applicant has no other criminal antecedents as stated in para-14 of the affidavit and is in jail since 11.12.2020.
Per contra, learned State counsel and learned counsel for the first informant opposed the prayer for bail and argued that the date of birth of the prosecutrix as per High School Marks Sheet is 20.6.2003 as such she was more than 17 years at the time of incident but was a minor. It is argued that the applicant is named in the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.c. and there is an allegation of his committing rape upon her. It is prayed that the prayer for bail be rejected.
After having heard learned counsels for the parties and perusing the record, it is evident that the applicant is not named in the F.I.R. His name surfaced in the statements recorded under Sections 161 and 164 Cr.P.C. of the prosecutrix. The radiological age of the prosecution as per the certificate of Radiologist of Department of Radiology, M.L.N. Divisional Hospital, Prayagraj, is above 18 years and below 20 years. She travelled with the applicant to distant places and lived there and roamed there for about 20 days without any resistance.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Mohammad Aazam, be released on bail in the aforesaid case crime number on furnishing a personal bond and 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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.
(V) 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 and the trial court may proceed against him under Section 229- A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
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.
(Samit Gopal,J.) Order Date :- 30.9.2021 Naresh