Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28171 of 2019 Applicant :- Nadeem Opposite Party :- State of U.P. and Another Counsel for Applicant :- Afzal Ahmad Khan Durrani,Shiv Prakash Counsel for Opposite Party :- G.A.,Ashish Pandey
Hon'ble Rajeev Misra,J.
1. Heard Mr. Upendra Kumar Singh, Advocate holding brief of Mr. Shiv Prakash, learned counsel for applicant and learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant- Nadeem seeking his enlargement on bail in Case Crime No.0017 of 2019, under sections 363, 376D, 506 I.P.C. and 3/4 POCSO Act, Police Station- Dhaulana, District- Hapur, during pendency of Special Sessions Trial No.18 of 2019 (State Vs. Nadeem) arising out of aforesaid case crime number and now pending in the court of Additional Sessions Judge, Hapur.
4. Record shows that in respect of an incident which is alleged to have occurred on 02.01.2019, a delayed F.I.R. dated 08.01.2019 was lodged by first informant- Subhash and was registered as Case Crime No.0017 of 2019, under section 363 I.P.C., Police Station- Dhaulana, District- Hapur. In the aforesaid F.I.R., applicant Nadeem has been nominated as solitary named accused.
5. According to the prosecution story as unfolded in the F.I.R., it is alleged that on 02.01.2019 at around 12:30 am, applicant Nadeem enticed away Tanu, the minor daughter of first informant.
6. Subsequently, the prosecutrix was recovered on 11.01.2019. Statement of prosecutrix was recorded by Investigation Officer under section 161 Cr.P.C. on 11.01.2019. Thereafter, prosecutrix was medically examined on the same day i.e. 11.01.2019. Ultimately, statement of prosecutrix was recorded under section 164 Cr.P.C. on 14.01.2019.
7. Police upon completion of statutory investigation of afore- mentioned case crime number, ultimately submitted a charge-
sheet dated 22.02.2019, whereby applicant- Nadeem along with Mohit @ Chintu have been charge-sheeted under sections 363, 376D, 506 I.P.C. and 3/4 POCSO Act.
8. Charge-sheeted accused, Mohit @ Chintu filed Criminal Misc. Bail Application No.54309 of 2019 (Mohit @ Chintu Vs. State of U.P.) before this Court. Same was allowed vide order dated 21.01.2020. For ready reference, same is reproduced herein under:-
"Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.17 of 2019, under Section 363, 376-D, 506 I.P.C. and 3/4 POCSO Act, Police Station Dhaulana, District Hapur.
Learned counsel for the applicant submits that according to F.I.R. version in the night of 02.01.2019 at about 12:30 a.m. victim aged about 14 years was enticed away by Nadeem. Applicant is not named in the F.I.R. During investigation on the basis of statement of victim name of the applicant surfaced and charge sheet was submitted against him. In statement before the court, the victim has not disclosed name of the applicant in commission of the offence and her attention was directed towards accused Chintu then she stated that applicant has not committed any misdeed with her. There is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. It is next contended that there is no previous criminal history of the applicant and is languishing in jail since 13.02.2019.
Per contra, learned A.G.A. has vehemently opposed the bail prayer of the applicant and submitted that the applicant has committed the alleged offence, therefore, he is not entitled for bail.
Considering the submissions advanced by learned counsel for the parties, facts and circumstances of the case as and also perusing the material on record, without expressing any opinion on merit of the case, the applicant is entitled for bail, let the applicant- Mohit Alias Chintu involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions :-
(i) The applicant shall file an undertaking to the effect that he will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicant shall not seek any adjournment on the dates 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.
(ii) The applicant 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.
(iii) 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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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."
9. During pendency of present bail application, statement of prosecutrix was recorded before court below as P.W.1. Same is on record as Annexure SA-2 to the supplementary affidavit.
10. Learned counsel for applicant contends that applicant is innocent. He has been falsely implicated in above-mentioned case crime number. Applicant is under custody since 19.01.2019. As such, applicant has undergone almost three years of incarceration. In case, applicant is released on bail, he shall not misuse the liberty of bail and shall co-operate in the trial. It is then contended that the prosecution story as unfolded in the statement of prosecutrix under sections 161 and 164 Cr.P.C. is not consistent. It is highly improbable. Co-accused Mohit @ Chintu has already been enlarged on bail.
11. Learned counsel for applicant has then invited attention of Court to the Medico Legal Report of prosecutrix and on basis thereof, he submits that prosecution story as crystalized in the statements of prosecutrix under sections 161 and 164 Cr.P.C. is not substantiated by the same. In short, submission is that the medical evidence does not support the prosecution story. On the aforesaid premise, learned counsel for applicant contends that applicant is liable to be enlarged on bail.
12. Per contra, learned A.G.A. has opposed this bail application. Learned A.G.A. contends that prosecutrix is a minor. Her date of birth as recorded in the educational record is 07.07.2005. Occurrence took place on 02.01.2019. As such, prosecutrix was aged about 13 years and 5 months on the date of alleged occurrence. It is next contended that prosecutrix was recovered after nine days of the alleged incident. Prosecutrix was in custody of applicant. Aforesaid fact has not been denied by learned counsel for applicant.
13. Learned A.G.A. has then invited attention of Court to the provisions contained in section 375 I.P.C. and on basis thereof, he submits that modesty of a minor girl, who is aged about 13 years and 5 months on the date of alleged occurrence has been molested by applicant. As such, applicant does not deserve any sympathy of this Court. Learned A.G.A. further submits that prosecutrix in her statement before court below as P.W.1 has clearly implicated the present applicant for the alleged offence. It is thus submitted that since trial has already commenced, interest of justice shall be served in case a direction is issued to court below to conclude the trial itself at the earliest instead of deciding the bail application.
14. Having heard learned counsel for applicant, learned A.G.A. for State, upon perusal of record, complicity of accused and acquisitions made, this Court finds that the prosecutrix was a minor girl aged about 13 years and 5 months on the date of alleged occurrence. Prosecutrix in her statement before court below in P.W.1 has clearly implicated the present applicant in the alleged crime. The provisions contained in section 375 I.P.C. cannot be ignored at this stage. Applicant cannot claim any benefit from the bail order of co-accused as applicant alone has been implicated by the prosecutrix in the crime in question in her statement before court below. Consequently, no case for bail is made out.
15. In view of above, present application for bail fails and is liable to be rejected.
16. It is, accordingly, rejected.
Order Date :- 16.12.2021 Saif