Roshan Ali v. State of U.P. and 3 Others

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44960 of 2023 Applicant :- Roshan Ali Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Shiv Ram Dubey Counsel for Opposite Party :- G.A.,Sheetala Prasad Pandey Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Shiv Ram Dubey, learned counsel for the applicant, Sri Sheetala Prasad Pandey, learned counsel for the first informant and Sri Ajay Singh, learned AGA-I for the State and perused the material on record.

¶3This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Roshan Ali, seeking enlargement on bail during trial in connection with Case Crime No. 258 of 2023, under Sections 363, 366, 376 I.P.C. and 5/6 POCSO Act, registered at Police Station Bakhira, District Sant Kabir Nagar.

¶4The FIR of the matter was lodged on 18.08.2023 by Abdul Khalik against the applicant alleging therein that his daughter aged about 16 years has been lured and enticed away by the applicant on 12.08.2023 at about 01:00 am.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the victim in her statement recorded under Section 161 Cr.P.C. states that she was in love with the applicant and physical relationship was established between them. On 12.08.2023 she went alone from the house after which the applicant and she went together and she wants to marry the applicant. It is argued that in her statement recorded under Section 164 Cr.P.C. of the victim she states that she went from the house without telling anyone with the applicant and the applicant did not lure her and entice her away. It is argued that although the school records go to show that the victim aged about 15 years but CMO concerned has opined her age to be about 19 years and looking to the variation in age, the benefit may be extended to the applicant. It is argued that the victim was recovered on 18.08.2023. It is argued that the FIR has been lodged after six days of the victim going missing for which there is no explanation regarding the delay in lodging of the FIR. He further argued that the applicant has no criminal history as stated in para 17 of the affidavit and is in jail since 19.08.2023.

¶6Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the school records, the victim is aged about 15 years and as such she is minor. Although the certificate of the CMO concerned and the statement of the victim recorded during investigation could not be disputed.

¶7After having heard learned counsels for the parties and perusing the records, it is evident that as per the certificate of the CMO concerned the victim is a major. She states of going with the applicant out of her own sweet will. She states that she was in love with the applicant.

¶8Looking 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.

¶9Let the applicant Roshan Ali, 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.

¶10The 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.

¶11The bail application is allowed. Order Date :- 6.11.2023 M. ARIF (Samit Gopal, J.) High Court of Judicature at Allahabad