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2023 DIGILAW 835 (ALL)

Neeraj v. State Of U. P.

2023-03-28

SANJAY KUMAR SINGH

body2023
ORDER : (Sanjay Kumar Singh, J.) 1. The prosecution case commenced on the basis of first information report lodged by Khushi Ram, who is the brother of the victim (hereinafter referred to as 'the first informant') on 22.6.2016 against the applicant Neeraj to the effect that on 21.6.2016 when his family members were sleeping, the applicant entered the house and caused them to smell certain intoxicant, due to which they became unconscious. Thereafter, the applicant committed rape on her minor sister aged about 15 years (hereinafter referred as 'the victim') and also threatened her of dire consequences. 2. On the basis of the aforesaid report, a case was registered against the accused Neeraj at case crime No. 369 of 2016, under Sections 328, 376, 506 IPC and ¾ of POCSO Act, police station Sardhana, district Meerut. After lodging of the FIR, the law set into motion and the investigating officer arrested the applicant and after completing all the formalities thereof, submitted charge sheet against him. Vide order dated 06.1.2017, the learned Additional Sessions Judge, Court No. 7/Special Judge, POCSO Act, Meerut framed the charges against the applicant under the aforesaid sections. 3. Perusal of order sheet of the lower court shows that after submission of the charge sheet, neither the first informant nor the victim is appearing before the trial court and the accused has been in jail since 23.6.2016. 4. In the year 2017, the applicant filed first bail application (Criminal Misc. Bail Application No. 38021 of 2017), which was dismissed by the Coordinate Bench of this Court vide order dated 24.9.2019 as none appeared on behalf of the applicant to address the Court. However, after a lapse of about five years, in the year 2022, this second bail application has been filed on behalf of the applicant. 5. By means of this second bail application under Section 439 of Cr.P.C., applicant, who is involved in Case Crime No. 369 of 2016, under Sections 328, 376, 506 IPC and ¾ of POCSO Act, police station Sardhana, district Meerut, seeks enlargement on bail during the pendency of trial. 6. Since, the matter relates to the POCSO Act, notice was issued to the first informant vide order dated 16.2.2023. 6. Since, the matter relates to the POCSO Act, notice was issued to the first informant vide order dated 16.2.2023. The Station House officer, Police Station Sardhana, district Meerut, in whose jurisdiction, the first informant and victim reside, was also directed to ensure service of notice upon the opposite party No. 2 and to file an affidavit in this regard by the next date fixed in the matter, i.e. 03.03.2023. However, neither the notice was served upon opposite party No. 2 nor the SHO concerned filed any affidavit. 7. On 20.3.2023, when this case was taken up, Shri Virendra Kumar Maurya, learned Additional Government Advocate made a statement at the Bar that the order of this Court dated 16.2.2023 was communicated to the Station House Officer, police station Sardhana, district Meerut through the Senior Superintendent of Police, Meerut on his email ID on 22.2.2023 and the same had been received in his office, but no heed has been paid by the S.S.P. Meerut and the SHO, police station Sardhana, district Meerut to the order of this Court. However, by order dated 20.3.2023, learned Additional Government Advocate was granted a week’s time to get the order dated 16.2.2023 complied with. The Senior Superintendent of Police, Meerut and Station House Officer, Sardhana, district Meerut were also directed to show cause as to why the order dated 16.2.2023 has not been complied with by them. They were also directed to produce the victim of the instant case before this Court, failing which they have to appear before this Court on 28.3.2023. 8. As the aforesaid officers failed to produce the victim, they appeared before this Court in person. 9. So far as the order of this Court dated 20.3.2023 is concerned, it speaks in two volumes. Firstly, in spite of the order of this Court 16.2.2023, which was communicated to the Station House Officer, police station Sardhana, district Meerut through the Senior Superintendent of Police, Meerut on his email ID on 20.3.2023 and the same having been received in his office, why no response to the said order has been given and secondly, pursuant to the order of this Court dated 20.3.2023, victim has not been produced. 10. 10. Pursuant to the order of this Court dated 20.3.2023, Shri Rama Kant Pachauri, presently posted as Inspector, police station Sardhana, district Meerut has filed his personal affidavit stating therein the steps taken to search the victim. He has stated in his affidavit that the victim was living in a rented house at Mohalla Cantonment, Police Station Sardhana, district Meerut. When the police personnel went to the aforesaid address, the landlord told that she had already left the house and that he does not have any information about the victim. Thereafter, the police visited the permanent address of the informant at Narnaul, Haryana where his brother told the police that neither the first informant is living in the village nor does have any relation about him and that his father has dispossessed the first informant from his property. Thereafter, the police contacted the Sarpanch of the village, who also told the police that Khushi Ram (informant) left the village about 4-5 years back. The Sarpanch of the village has also given a certificate to this effect. Thereafter, the SHO sent one SI Param Lal Singh at Tariza Nagar, Dhariwal, police station Dhariwal, district Gurdaspur, where he was told that informant of this case sold out his movable and immovable properties and left the village about 19-20 years back. In view of the above circumstances, the victim could not be traced out. 11. Shri Rohit Singh Sajwan, presently posted as Senior Superintendent of Police, Meerut submits that the order of this Court dated 16.2.2023 was communicated to his office, but Head Constable Nishant Chawla, who is dealing with the matter, did not forward the same to the Station House Officer, Sardhana, district Meerut to ensure compliance thereof. Therefore, they could not forward any information to the learned Additional Government Advocate. He further submits that as soon as he came to know about the lapse on the part of Head Constable Nishant Chawla in complying with the orders of this Court dated 16.2.2023 and 20.3.2023, he immediately suspended him for his dereliction in duties. He tenders his unconditional apology for the inconvenience caused to this Court for non-compliance of the order dated 16.2.2023. 12. He tenders his unconditional apology for the inconvenience caused to this Court for non-compliance of the order dated 16.2.2023. 12. Shri Rohit Singh Sajwan, Senior Superintendent of Police, Meerut also submits that he has discussed the matter with the senior officers of the department in respect of issuance of general guidelines regarding taking ID, mobile number, Adhar number, undertaking of the informant and the victim, who are living in a rented house that in case they shift to another house, they shall inform the police station concerned etc. at the time of lodging of FIR and to take other suitable steps in order to ensure the presence of the informant/victim before the trial court at the time of their examination. 13. The Senior Superintendent of Police, Meerut assures the Court that the aforesaid guidelines shall be issued by the higher authorities within three months. This Court has no reason to doubt the bona fide of the officer concerned. 14. The personal appearance of Shri Rohit Singh Sajwan, Senior Superintendent of Police, Meerut and Shri Rama Kant Pachauri, Inspector, police station Sardhana is dispensed with. 15. Since the applicant has been in jail since 23.6.2016, therefore, this Court proceeds to decide the prayer of bail of the applicant on its merits. 16. Heard learned counsel for the applicant and learned Additional Government Advocate representing the State. 17. By means of this second bail application under Section 439 of Cr.P.C., applicant, who is involved in Case Crime No. 369 of 2016, under Sections 328, 376, 506 IPC and ¾ of POCSO Act, police station Sardhana, district Meerut, seeks enlargement on bail during the pendency of trial. 18. The main substratum of argument of learned counsel for the applicant is that the applicant has been in jail since 23.6.2016, but the trial has not been concluded. This Court vide order dated 10.1.2023 had called for a report from the trial court through the District Judge, Meerut. Purusant to the said order, the learned Additional Sessions Judge/Special Judge, (POCSO Act), Meerut submitted his report dated 20.1.2023 mentioning there that in this case charge sheet was submitted on 14.9.2016 and charges were framed against the applicant on 06.1.2017, but in spite of best efforts, informant and victim of the case could not be produced for trial. Statements of formal witnesses have already been recorded. Statements of formal witnesses have already been recorded. In spite of best efforts, the informant and the victim are not traceable. 19. It is submitted by the learned counsel for the applicant that there is no chance of the applicant fleeing away from the judicial process or tampering with the prosecution evidence. The applicant does not have any criminal history and is languishing in jail since 23.6.2016 and in case, he is released on bail, he will not misuse the liberty of bail and cooperate with the trial. 20. Per contra, learned Additional Government Advocate opposed the prayer for bail of the applicant, but could not dispute the above factual aspect of the matter. 21. Having heard learned counsel for the parties and examined the matter in its entirety, I find that the victim and informant are not traceable and that the applicant is languishing in jail since 23.6.2016. 22. Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the learned counsel for the parties, this Court is of the opinion that the applicant has made out a case for bail. Hence, the bail application is hereby allowed. 23. Let the applicant Neeraj, 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: (i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable. (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 after his release, the applicant shall not involve in any criminal activity. (iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant. 24. In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the applicant. 25. Copy of this order shall be communicated to the Senior Superintendent of Police, Meerut by the learned Government Advocate for onward transmission to the authorities concerned. 24. In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the applicant. 25. Copy of this order shall be communicated to the Senior Superintendent of Police, Meerut by the learned Government Advocate for onward transmission to the authorities concerned. 26. The Registrar (Compliance) of this Court is directed to send a copy of this order to the Director General of Police, U.P. Lucknow and Legal Remembrancer, U.P. Lucknow for compliance. 27. Although this bail application has been disposed of, but the same shall be listed before this Court on 14.7.2023 for limited purpose of compliance of the order in respect of issuance of necessary guidelines as discussed above by the authorities concerned.