# Neeraj v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 24
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-28
- **Case number:** Crl. Misc. 2nd Bail Application No. 30489 of 2022
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neeraj-v-state-of-u-p-ors-50096
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
Section - 439 - Indian Penal Code,
Sections 328, 376 & 506 - Protection Of
Children From Sexual Offences (POCSO)
Act, Sections 3 & 4 - Second Bail Application -
FIR - offence of Rape, threat and dire
consequences - court finds that, applicant is in
jail since second day of incident but, trial has
not been concluded - charges were framed since
informant and victim are not traceable therefore
case could not be produced for trial - applicant
does not have any criminal history - Held, Case
as well as keeping in view the nature of the
offence, evidence, complicity of the accused and
submissions of learned counsel for parties, this
Court is of the opinion that applicant has made
out a case for bail - hence, bail application is
hereby
allowed
-
directions
issued
for
compliance, accordingly. (Para - 18, 19, 22, 23,
26)

Bail Application Allowed. (E-11)

## Text

24 INDIAN LAW REPORTS ALLAHABAD SERIES
amount of compensation. In my opinion, if
the victim has become hostile and does not
support the prosecution case at all, it is
appropriate to recover the amount if paid to
the victim. The victim is the person who
comes before the Court and during trial if
she denies the allegation of rape and
becomes hostile, there is no justification to
keep the amount of compensation provided
by the State Government. The State
Exchequer cannot be burdened like this and
there is all possibility of misuse of the laws.
Therefore, in my opinion, the amount of
compensation given to the victim or the
family member, is liable to be recovered by
the authorities concerned who have paid
the compensation.

12. Therefore, considering the above
aspect of the matter, it is directed that the
State Government will pass appropriate
orders and issue necessary directions to the
authorities concerned to recover the amount
of compensation if paid, in the cases, where
the victim has become hostile during trial
and not supported the prosecution. Let
necessary exercise be done within a period
of three months.

13. The Senior Registrar of this Court
is directed to send a copy of this order to
the Chief Secretary of Government of Uttar
Pradesh for necessary compliance.

14. List this case in the second week
of August and learned AGA will submit
progress report.
----------
(2023) 4 ILRA 24
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.03.2023

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.
Crl. Misc. 2nd Bail Application No. 30489 of 2022

Neeraj ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Ali Hasan, Sri Deepak Kumar Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
Section - 439 - Indian Penal Code,
Sections 328, 376 & 506 - Protection Of
Children From Sexual Offences (POCSO)
Act, Sections 3 & 4 - Second Bail Application -
FIR - offence of Rape, threat and dire
consequences - court finds that, applicant is in
jail since second day of incident but, trial has
not been concluded - charges were framed since
informant and victim are not traceable therefore
case could not be produced for trial - applicant
does not have any criminal history - Held, Case
as well as keeping in view the nature of the
offence, evidence, complicity of the accused and
submissions of learned counsel for parties, this
Court is of the opinion that applicant has made
out a case for bail - hence, bail application is
hereby
allowed
-
directions
issued
for
compliance, accordingly. (Para - 18, 19, 22, 23,
26)

Bail Application Allowed. (E-11)

(Delivered by Hon'ble 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
4 All. Neeraj Vs. State of U.P. & Ors.
25
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 3⁄4 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 3⁄4 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. 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.
26 INDIAN LAW REPORTS ALLAHABAD SERIES

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. 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. 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.
4 All. Neeraj Vs. State of U.P. & Ors.
27

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 3⁄4 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. 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
28 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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.
----------
(2023) 4 ILRA 28
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.03.2023

BEFORE

THE HON'BLE SAMEER JAIN, J.

Crl. Misc. First Bail Application No. 57731 of
2022
Connected With
Crl. Misc. Bail Application No. 60061 of 2022

Mohd. Tufail ...Applicant
Versus
U.O.I. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Anil Kumar Srivastava

Counsel for the Opposite Parties:
A.S.G.I., Sri Krishna Agarawal, Sri Vinay
Kumar Singh

Criminal Law - Criminal Procedure Code,
Section - 439 - Custom Act, 1962 -
Sections 2(33), 11, 104, 104(6), 104(7),
108, 111, 125, 135(1)(A) & 135(1)(B) -
Narcotic
Drugs
and
Psychotropic
Substances Act,1985 - Section - 67 - Bail
Application - intelligence input about smuggling
of Foreign Origin Gold by the accused applicants
- recovering of total 2548.5 gm gold from the
possession of applicants - Whether value of
individually recovered gold should be considered
or value of combined recovered gold should be
considered - Held, According to prosecution gold
was recovered from possession of applicants
which was liable for confiscation Section 111 of
Customs Act and as per Section 125 Customs
Act authority concerned may levy fine in lieu of
confiscation and therefore, it appears from
provisions of Section 11 of Customs Act gold is
not prohibited goods but it is restricted goods
and as per Section 125 Customs Act in lieu of
confiscation fine may be levied - As import of