Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32407 of 2020 Applicant :- Mohd. Aftab Opposite Party :- State of U.P. and Another Counsel for Applicant :- Samarth Sinha,Shalini Mishra,Vijay Sinha Counsel for Opposite Party :- G.A.,Ankit Kapoor
Hon'ble Ram Krishna Gautam,J.
By means of this application the applicant Mohd. Aftab has prayed to release him on bail in Case Crime No. 263 of 2020, u/s 363, 366, 376D, 323, 506 I.P.C. & 3/4 of POCSO Act, P.S.
Bhelupur, District Varanasi.
Heard learned counsel for the applicant and learned counsel for the informant as well as learned AGA representing the State. Perused the record.
Learned counsel for the applicant argued that the applicant is innocent. He has been falsely implicated in this very case crime number and is languishing in jail since 9.6.2020. He is of no criminal antecedent. There is no likelihood of applicant's fleeing from course of justice or tempering with evidence in case he is released on bail. Prosecutrix is major. She has been determined to be 19 to 20 years in medical age determination test by Medical Board. As per FIR and statement recorded under Section 161 and 164 of Cr.P.C., she lived with applicant for three years and after it, when relation became not cordial, this false case got registered. Even constituting elements of offence punishable under Section 376D, is not made out, because no group of persons or persons acting in furtherance of a common intention, is there. Hence, bail has been prayed for.
Learned counsel for the informant as well as learned AGA has vehemently opposed with this contention that prosecutrix is minor as per school record and it was subjection of rape by applicant and his brother, for which there is reiteration of contention in statement recorded under Section 161 and 164 of Cr.P.C. Offence of rape is there. There is every likelihood of applicant's fleeing from course of justice or tempering with evidence in case he is released on bail. Hence, bail be rejected.
Having heard learned counsel for both sides and gone thorough the material placed on record, it is apparent that FIR itself discloses the occurrence of 8.7.2017 and the report was got lodged on 8.6.2020 i.e. after three years, with no protest in between. Prosecutrix has been held to be of 19 to 20 years in medical age determination by Medical Board. She, in her statement recorded under Section 161 and 164 of Cr.P.C., has categorically said to be with applicant under her own volition. She resided with applicant more than three years. Under all above facts and circumstances as well as considering the nature of accusations, severity of the punishment in the case of conviction and without expressing any opinion on the merits of the case, this court is of the view that the applicant may be enlarged on bail with certain conditions.
Accordingly, the bail application is allowed.
Let the applicant, Mohd. Aftab, involved in above mentioned case crime number be released on bail on his executing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
1. The applicant will not tamper with the evidence.
2. The applicant will not indulge in any criminal activity.
3. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial.
4. The applicant will appear regularly on each and every date fixed by the trial court unless his personal appearance is exempted through counsel by the court concerned.
5. The party shall file computer generated copy of such order downloaded from the official website of High Court, Allahabad.
6. The computer generated copy of such order shall be self attested by counsel of the party concerned.
7. 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.
In the event of breach of any of the aforesaid conditions, the court below will be at liberty to proceed to cancel his bail.
Order Date :- 6.1.2021 Kamarjahan