Raja v. State of U.P. and 3 Others

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47979 of 2023 Applicant :- Raja Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ajay Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Dr. Gautam Chowdhary,J.

¶1Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.

¶2Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated in the present case. Learned counsel further submits that on 15.12.2022 the F.I.R. was lodged by the informant, who is father of the victim against one Suraj under Sections 363, 366 I.P.C., alleging therein that on

01.12.2022 his minor daughter aged about 16 years went outside the house to purchase some items, who has been enticed away by someone, on 01.12.2022 he received a phone call and the caller was telling his name as Suraj, who also provided him to talk with his daughter and he suspects that his minor daughter has been enticed away by Suraj. Learned counsel for the applicant further submits that thus name of applicant does not find place in the F.I.R. Learned counsel for the applicant further submits that during investigation the Investigating Officer recorded statement of complainant under Section 161 Cr.P.C. wherein he repeated the same version of the F.I.R. Learned counsel for the applicant further submits that when the victim was recovered her statement under Section 161 Cr.P.C. was recorded wherein she has stated that on the date of incident Suraj (co-accused) and the applicant had enticed away her, firstly they took her to Haryana and thereafter to Noida but she had not made any allegation of rape against anyone. Learned counsel for the applicant further submits that in her statement recorded under Section 164 Cr.P.C. the victim has stated that she knew the co-accused Suraj prior to the date of incident, on the date of incident she met him who took her to his sister and mother at Loni, thereafter, Suraj took her to Delhi where applicant also reached there, thereafter both persons took her to Gurgaon at the house of his sister-in-law (Bhabhi) namely Arti, where she stayed for several days, thereafter, Suraj went to Bihar, she also made allegation of rape against both the accused, i.e., the applicant and the co-accused, Suraj. Learned counsel for the applicant further submits that the victim denied for her medical examination. Learned counsel for the applicant further submits that there are major contradictions in the statements of the victim recorded under Sections 161 & 164 Cr.P.C., the victim met with the co-accused Suraj on her own will and thereafter went several places with the applicant and co-accused Suraj and had not ever raised any alarm, thus, it appears that victim is a consenting party. Learned counsel for the applicant further submits that as per the office of the Chief Medical Officer age of the victim was found to be about 17 years, thus, taking benefit of two years either side the victim is major and since the victim has refused to get her medical examination conducted, therefore, in absence of any evidence of her sexual assault it cannot be said that applicant has committed her rape and the applicant has falsely been implicated in the case. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 07.01.2023, having no criminal history.

¶3Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence.

¶4After perusing the record in the light of the submissions made at the bar and after taking an overall view of all 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, without expressing any opinion on merits of the case, this Court is of the view, that the applicant may be enlarged on bail.

¶5Let applicant-Raja, involved in Case Crime No. 1482 of 2022, under Sections 376D, 363, 366, 504, 506, 120-B I.P.C. and Section 5G/6 of Protection of Children From Sexual Offences Act, Police Station Loni, District Ghaziabad, be enlarged on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:-

(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.

¶6The 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 in accordance with law.

¶7The bail application is allowed. Order Date :- 21.11.2023 Mustaqeem. High Court of Judicature at Allahabad