Amit Patel v. State of U.P. and 3 Others

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49399 of 2023 Applicant :- Amit Patel Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Uday Shankar Tiwari,Arvind Kumar Verma Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. Heard Mr. Uday Shankar Tiwari, the learned counsel for applicant and the learned A.G.A. for State. Perused the record. This application for bail has been filed by applicant-Amit Patel seeking his enlargement on bail in Case Crime No. 174 of 2023, under Sections 363, 366, 376, 507 IPC and Section 3/4 POCSO Act, Section 3(2)(Va) SC/ST Act, Police Station-Phoolpur, District Varanasi during the pendency of trial. Record shows that, in respect of an incident which is alleged to have occurred on 19.1.2023 a belated F.I.R. dated 29.1.2023 was lodged by first informant-Maya and was registered as Case Crime No. 010 of 2023, under Sections 363, 366, 376-D, 342 IPC, Police Station-Junawai, District Sambhal. In the aforesaid F.I.R. one person namely, Amit Patel i.e. applicant herein has been nominated as named accused. At the very outset, learned A.G.A. submits that notice of present application for bail has been served upon first informant-opposite party-2 on 3.11.2023. However, inspite of service of notice, no one has put in appearance on behalf of first informant-opposite party-2 to oppose this application for bail. Record shows that in respect of an incident which is alleged to have occurred on 18.5.2023, a belated F.I.R. dated 28.5.2023 was lodged by first informant Rajesh Gaur, (father of prosecutrix) and was registered as Case Crime No. 174 of 2023, under Sections 363, 366, 376, 507 IPC and Section 3/4 POCSO Act, Section 3(2)

(Va) SC/ST Act, Police Station-Phoolpur, District Varanasi. In the aforresaid F.I.R. applicant has been nominated as solitary named accused. Gravamen of the allegations made in the F.I.R. is to the effect that named accused Amit Patel, enticed away the minor daughter of first informant i.e. prosecutrix aged about 14 years. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Thereafter the statement of the prosecutrix was recorded under section 161 Cr.P.C, which is on record at page 29 of the paper book. As per said statement of the prosecutrix, it appears that prosecutrix is a willing and consenting party as she joined the applicant out of her own sweet will and thereafter accompanied the applicant to Bombay. Subsequent to above, prosecutrix was requested for her internal medical examination. According to learned A.G.A. the Doctor who examined the prosecutrix, did not find any signs on her body so as to denote commission of deliberate and forceful sexual assault. However, with regard to the private part of the prosecutrix, the Doctor has opined as follows: "Hymen-No Injury" Thereafter certain samples were taken from the body of prosecutrix for pathalogical examination. Copy of supplementary medico legal report has not been brought on record. As per medical opinion, the prosecutrix is said to be aged about 19 to 20 years. Thereafter, the statement of the prosecutrix was recorded under section 164 Cr.P.C. Same is on record at page 34 of the paper book. The prosecutrix in her aforesaid statement has reiterated from previous statement under section 161 Cr.P.C. During course of investigation, Investigating Officer recovered the High School certificate of the prosecutrix, wherein her date of birth is recorded as 10.9.2023. As such, the prosecutrix was aged about 17 years, 7months and 27 days. During course of investigation, Investigating Officer examined first informant and other witnesses under section 161 Cr.P.C. Witnesses so examined have substantially supported the F.I.R. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant is established in the crime in question. Accordingly he submitted the charge sheet dated 12.7.2023, whereby applicant has been charge-sheeted under sections 363, 366, 376, 507 IPC and Section 3/4 POCSO Act, Section 3(2)(Va) SC/ST Act. Learned counsel for applicant submits that though the applicant is a named as well as charge sheeted accused, yet he is liable to be enlarged on bail. Attention of the Court was invited to the statements of the prosecutrix recorded under sections 161/164 Cr.P.c. On the basis of above, it is submitted by learned counsel for applicant that prima facie the prosecutrix is a willing and consenting party, inasmuch as the prosecutrix herself willingly joined the applicant and thereafter accompanied him to Bombay. The medical evidence does not show commission of forceful and deliberate sexual assault upon the prosecutrix. As such no offence as complained of can be said to have been committed by applicant. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 31.5.2023. As such, he has undergone more than six monhs of incarceration. Police Report in terms of Section 173(2) Cr.P.C. has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, however, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged that 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 since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. Applicant is guilty of dislodging the modesty of prosecutrix, who is young girl less than 18 years of age on the false promise of marriage. As such, no sympathy be shown in favour of applicant. However, he could not dislodge the factual and legal submissions urged by learned counsel for 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, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that as per statements of the prosecutrix, recorded under sections 161/164 Cr.P.C., prima facie the prosecutrix is a willing and consenting party, prosecutrix has joined the applicant out of her own sweet will and thereafter accompanied the applicant to Bombay and remained there for a sufficient period, as per the material on record, the present case is a brunch of promise and not false promise of marriage, the judgement of the Supreme Court in Naim Ahamaed Vs. State (NCT of Delhi), 2023 SCC Online SC 89 the clean antecedents of applicant, period of incarceration undergone, the Police Report in terms of Section 173(2) Cr.P.C. has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized yet inspite of above the learned A.G.A. could not point out any such circumstance from record, necessitating the custodial arrest of applicant during the pendency of trial, therefore irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, 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 Amit Patel 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(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 SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER 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/her 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 :- 15.12.2023 Arshad High Court of Judicature at Allahabad