Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11023 of 2021 Applicant :- Shivam Opposite Party :- State of U.P. and Another Counsel for Applicant :- Brijendra Kumar Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J.
In paragraph No. 17 of the counter affidavit, sworn to by Mr. Prateek Sharma, Sub Inspector, police station Kant, district Shahjahanpur, it has been mentioned that notice of this case has been served on the informant, but no one has put in appearance on behalf of the informant/opposite party No. 2.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record of the case.
The instant bail application has been filed on behalf of the applicant, Shivam with a prayer to release him on bail in Case Crime No. 789 of 2020, under Sections 363, 366, 376 IPC and 3/4 POCSO Act, police station Kanth, district Shahjahanpur during the pendency of trial.
As per the prosecution case, in brief, on 15.11.2020 F.I.R. was lodged by the informant (father of the victim) against Shivam-applicant, Ramkewal, Guddu, Rambahadur and Seema alleging inter alia therein that on 15.11.2020 his daughter was enticed away by the applicant.
It is argued by learned counsel for the applicant that the applicant is absolutely innocent and has falsely been implicated in the present case because the victim has inclination towards the applicant. It is next submitted that from the perusal of the F.I.R. it is apparently clear that at the time of lodging the F.I.R., victim was with informant at the police station, therefore, allegation of enticing her away by the applicant is false. It is next submitted that the victim in her statements recorded under Sections 161 and 164 Cr.P.C. did not support the prosecution case. It is pointed out that victim in her statements recorded on 20.11.2020 under Section 164 Cr.P.C. specifically stated that a week's before lodging of the F.I.R. in the instant case, she had gone to the house of the applicant without informing anyone and stated that she wants to marry him. She further stated that the applicant replied that as on date she is not in marriageable age, therefore he will not marry her and assured her of marriage on attaining her majority. Her mother has also assured her that on attaining the age of majority, she will get her marriage solemnized with the applicant. She further states that the F.I.R. has been lodged on the basis of suspicion. On the strength of aforesaid facts, it is submitted that the victim in her statement recorded under Section 164 Cr.P.C. did not make any allegation of rape against the applicant. The applicant has no criminal history to his credit and is languishing in jail since 16.11.2020 and in case he is enlarged on bail he will not misuse the liberty of bail.
Per contra learned A.G.A. has opposed the bail prayer of the applicant, but does not dispute that the victim in her statement recorded under Section 164 Cr.P.C. did not make allegation of rape against the applicant.
I have considered the submissions of the parties and the fact that the victim has not supported the prosecution case and no allegation of rape has been levelled against the applicant in the statement of the victim.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Without expressing any opinion on the merits of the case, let the applicant Shivam 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:-
(1) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.
(2) That the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(3) That after his release, the applicant shall not involve in any criminal activity
(4) The applicant shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.
(5) The computer generated copy of this order shall be self attested by the counsel of the party concerned.
(6) 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.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 13.8.2021 Sumaira