Shamser Urf Samser v. State of U.P. and 3 Others

Court No. -65 Case :-CRIMINAL MISC. BAIL APPLICATION No. -42190 of 2023 Applicant :-Shamser Urf Samser Opposite Party :-State Of U.P. And 3 Others Counsel for Applicant :-Jyoti Bhushan Counsel for Opposite Party :-G.A. Hon'ble Rajeev Misra,J. Heard Mr. Jyoti Bhushan, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Shamser Urf Samser seeking his enlargement on bail in Case Crime No.0359 of 2022, under Sections 376, 323, 506 IPC and Sections 3/4 (2) Pocso Act, police station Nizamabad, district Azamgarh, during the pendency of trial i.e. Sessions Trial No.262 of 2022 (State Vs. Shamser) under Sections 376, 323, 506 IPC and Sections 3/4 (2) Pocso Act now pending in the court of Special Judge (Pocso Act), Azamgarh. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant-opposite party-2 on 09.09.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party-2 to oppose this application for bail. Perused the record. At the very outset, the learned counsel for applicant contends that though the applicant is a named as well as charge-sheeted accused, yet he is liable to be enlarged on bail. He further submits that the prosecutrix, namely, Sabrun, has deposed before the court below as PW-1 and the first informant, namely, Bhola has also deposed before the court below as PW-2. However, both the witnesses, who have been examined up to this stage, have not supported the FIR. Apart from above, it is also contended that the prosecutrix is an illiterate lady. There is no document on record regarding the date of birth of the prosecutrix. Therefore, by virtue of the provisions contained in Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015, the age of the prosecutrix is to be ascertained with reference to the medical opinion. As per the medical opinion, the prosecutrix is said to be aged 18-20 years. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. The applicant is in jail since 18.08.2022. As such, he has undergone more than one year and two months of incarceration. The police report under Section 173(2) CrPC has already been submitted. As such the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. In view of above and the facts noted above, no useful purpose shall be served in prolonging the custodial arrest of applicant. He, therefore, submits that the applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that simply on the basis of statements of PW-1 and PW-2, it cannot be inferred that applicant is innocent. However, he could not dislodge the factual and legal submissions urged by the learned counsel for the applicant with reference to the record at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, complicity of the accused, accusation made, nature and gravity of offence and coupled with the fact that since the age of the prosecutrix is to be determined as per he medical opinion in the absence of any document in consonance with Section 94 2 (i) and 94 2 (ii) of the Act, 2015, as per medical opinion the prosecutrix is aged 18-20 years, the prosecutrix and the first informant who have deposed before the court below as PW-1 and PW-2 have not supported the FIR, this Court finds that no useful purpose shall be served in prolonging the custodial arrest of the applicant, the court also finds that applicant is a man of clean antecedents having no criminal history to his credit except the present one, the applicant has been under incarceration since 18.08.2022, therefore irrespective of the objections raised by the learned A.G.A. but, without making any comment on the merits of the case, the applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant Shamser Urf Samser, involved in aforesaid case crime number, 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 which are being imposed in the interest of justice :-

(i) 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.

(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 sufÏcient cause, the trial court may proceed against him under section 229-A I.P.C.

(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., 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.

(iv) 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 sufÏcient 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.

(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. Order Date :- 30.10.2023. Rks. High Court of Judicature at Allahabad