Sahil Khan v. State of U.P. and Another

Court No. - 72 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12339 of 2023 Applicant :- Sahil Khan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Diwanshu Tiwari Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J.

¶1List has been revised.

¶2Supplementary affidavit filed today is taken on record.

¶3Heard learned counsel for the applicant and Sri S.P. Pandey, learned A.G.A. for the State as well as perused the record.

¶4The present anticipatory bail application has been filed on behalf of the applicant in Case Crime No.37 of 2023, registered under Sections 363, 376(2)(N) IPC and Section 5J(2)/6 POCSO Act at Police Station-Alapur, District Badaun with a prayer to enlarge him on anticipatory bail.

¶5As per prosecution story, the applicant is stated to have enticed away the minor daughter of the informant on

11.01.2023.

¶6Learned counsel for the applicant has stated that the applicant has been falsely implicated in the present case. The victim is a consenting party and the FIR is delayed by ten days and there is no explanation of the said delay caused. Learned counsel has further stated that the parents of the victim were not ready to marry her to the applicant, as such she herself had run away from her house and had called the applicant, which is but evident from her statement recorded under Section 164 Cr.P.C. It is also mentioned in it that she had married the applicant in a mosque at Kanpur.

¶7Learned counsel for the applicant has further stated that as per school certificate, her date of birth was 05.05.2007, as such a leverage of two years may be granted to the applicant in the light of the judgment of Apex Court passed in Sushil Kumar vs. Rakesh Kumar, (2003) 8 SCC 673, wherein it has been stated that it is more often in the Indian Society that person shows the age of their wards much below than their actual age. The victim, at the time of her statement, had herself stated that she was pregnant of five months from the corporeal relationship established with the applicant. The present case is a clear misuse of the POCSO Act. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There are no criminal antecedents of the applicant. The applicant has apprehension of his arrest. Learned counsel for the applicant undertakes that he has co-operated in the investigation and is ready to do so in trial also failing which the State can move appropriate application for cancellation of anticipatory bail.

¶8Per contra, learned A.G.A. has vehemently opposed the anticipatory bail application but unable to dispute the submissions raised by the learned counsel for the applicant.

¶9On due consideration to the arguments advanced by learned counsel for the applicant as well as learned A.G.A. and considering the nature of accusations and antecedents of the applicant, the applicant is liable to be enlarged on anticipatory bail in view of the judgment of Supreme Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi), (2020) 5 SCC 1". The future contingencies regarding the anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

¶10In view of the above, the anticipatory bail application of the applicant is allowed. Let the accused-applicant-Sahil Khan be released forthwith in the aforesaid case crime (supra) on anticipatory bail till the conclusion of trial on furnishing a personal and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i). that the applicant shall make himself available for interrogation by a police officer as and when required;

(ii). 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;

(iii). that the applicant shall not leave India without the previous permission of the court;

(iv). that in case charge-sheet is submitted the applicant shall not tamper with the evidence during the trial;

(v). that the applicant shall not pressurize/ intimidate the prosecution witness;

(vi). that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

(vii). that in case of breach of any of the above conditions the court concerned shall have the liberty to cancel the bail.

¶11It is made clear that observations made hereinabove are exclusively for deciding the instant anticipatory bail application and shall not affect the trial. Order Date :- 20.11.2023 Ravi Kant (Krishan Pahal, J.) High Court of Judicature at Allahabad