# Rajendra Agarwal urf Bablu v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2023) 4 ILRA 444
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-21
- **Case number:** Crl. Misc. Bail Application No. 833 of 2023
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-agarwal-urf-bablu-v-state-of-u-p-ors-opp-parties-49971
- **Pages:** 8

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 354, 376(D)(B), 323, 328,
506, 366A & 120B , The Protection of
Children From Sexual Offences Act, 2012 -
Section
5/6,
The
Code
of
criminal
procedure, 1973 - Sections 161 and 164 -
The Juvenile Justice (Care And Protection
Of Children) Act, 2000 - "Child in Need of
Care and Protection" - Section 29, 30, 31 ,
The Juvenile Justice (Care and Protection
of Children) Act, 2015 - Section 27 ,
Section 110(1) , Uttar Pradesh Juvenile
Justice (Care and Protection of Children)
Rules, 2019 - Rules 16 , 17 & 35 .

Serious allegations against applicant (father of
victim) - betrayed a pious relationship of father
and daughter (victim, minor girl) - Victim's
narration of prosecution story exaggerated -
Victim's facts were consistent in FIR and
statements - unable to point out a single place
of occurrence and date/month of occurrence -
Victim's mother's failure to protest or lodge FIR
suggests improbability - Co-accuseds granted
bail for serious rape allegation. (Para -
11,12,13)

HELD:-All the co-accused granted bail against
whom very serious allegation of rape was
levelled. Court inclined to grant bail to applicant
also. (Para -13)

Bail application allowed. (E-7)

List of Cases cited:

## Text

444 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence, this Court while exercising the
powers under section 482 of Cr.P.C., cannot
interfere with such proceedings. Hence, no
grounds are made out for quashing of the
proceedings under section 138 of the
Negotiable Instruments Act.

22. On the basis of discussions made
herein above, this Court finds that there is
no illegality or infirmity in the summoning
order dated 05.04.2022 passed by the
concerned court below. Therefore, no
interference is required at this stage.

23. In view of the aforesaid, the
application is, accordingly, dismissed.

24. The Registrar General of this
Court shall communicate this order to the
Chairman, Bar Council of Uttar Prdesh,
Allahabad; President, High Court Bar
Association, Allahabad and Secretary, High
Court
Bar
Association,
Allahabad,
apprising
them
of
the
suggestions
expressed in paragraph nos. 3 to 6 of this
order.
----------
(2023) 4 ILRA 444
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Misc. Bail Application No. 833 of 2023

Rajendra Agarwal urf Bablu ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Vijit Saxena, Sri Rakesh Kumar Pandey

Counsel for the Respondent:
G.A.
(A) Criminal Law - Indian Penal Code,
1860 - Sections 354, 376(D)(B), 323, 328,
506, 366A & 120B , The Protection of
Children From Sexual Offences Act, 2012 -
Section
5/6,
The
Code
of
criminal
procedure, 1973 - Sections 161 and 164 -
The Juvenile Justice (Care And Protection
Of Children) Act, 2000 - "Child in Need of
Care and Protection" - Section 29, 30, 31 ,
The Juvenile Justice (Care and Protection
of Children) Act, 2015 - Section 27 ,
Section 110(1) , Uttar Pradesh Juvenile
Justice (Care and Protection of Children)
Rules, 2019 - Rules 16 , 17 & 35 .

Serious allegations against applicant (father of
victim) - betrayed a pious relationship of father
and daughter (victim, minor girl) - Victim's
narration of prosecution story exaggerated -
Victim's facts were consistent in FIR and
statements - unable to point out a single place
of occurrence and date/month of occurrence -
Victim's mother's failure to protest or lodge FIR
suggests improbability - Co-accuseds granted
bail for serious rape allegation. (Para -
11,12,13)

HELD:-All the co-accused granted bail against
whom very serious allegation of rape was
levelled. Court inclined to grant bail to applicant
also. (Para -13)

Bail application allowed. (E-7)

List of Cases cited:

1. Manoj Kumar Khokhar Vs St. of Raj. & anr. ,
(2022)3 SCC 501

2. Brijmani Devi Vs Pappu Kumar , (2022) 4 SCC
497

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Applicant-Rajendra Agarwal alias
Bablu has approached this Court by way of
filing present bail application seeking
enlargement on bail in Case Crime No. 860
of 2021, under Sections 354, 376(D)(B),
323, 328, 506, 366A, 120B IPC and 5/6
4 All. Rajendra Agarwal urf Bablu Vs. State of U.P. & Ors.
445
POCSO Act,
Police
Station
Kotwali
Lalitpur, District Lalitpur, after rejection of
his bail application vide order dated
07.01.2022
passed
by
Additional
Sessions/Special Judge (POCSO Act),
Lalitpur.

2. In the present case an FIR was
lodged by victim, a minor girl, aged about
17 years. She has narrated how she suffered
sexual ordeal for many years which was
commenced, when she was a student of
Class-VI. First perpetrator who ravished
her was her father (applicant), who not only
thereafter repeatedly raped her, but put her
in a prostitution racket also.

3. In the FIR, victim has narrated how
her father himself presented her before
other men, who raped her. Victim also
described that even her relatives (uncles)
also raped her and women of her family
helped them in committing act of rape.
Victim and her mother were subjected to
sedatives. In all victim, has named 25
accused persons including her father, close
relatives, her family friends and other
persons and women of her family, who
helped in crime. She was not able to
disclose earlier about above referred
offences since there were repeated threats
to cause harm to her mother, younger
brother and sister.

4. Sri Vijit Saxena, learned counsel
for applicant, submitted that story of
victim, on the face of it, appears to be not
only concocted but improbable also. It
would be beyond imagination that victim
was repeatedly raped by her father, her
close relatives and applicant has put her in
prostitution and it continued for many
years. Victim has never raised any alarm or
called police or reported matter before
police authorities. Learned counsel further
submitted that contents of FIR remained
consistent in the statements of victim
recorded under Sections 161 and 164
Cr.P.C. as well as statement made before
Medical Officer and Members of Child
Welfare Committee, however, she has not
mentioned a single date in her statements
though she was allegedly subjected to rape
repeatedly on many days during long
duration of atleast 6-7 years.

5. Learned counsel further submitted
that except applicant, this Court has granted
bail to all other co-accused by different
Coordinate Benches. Medical examination
has not supported case of victim. Applicant
was falsely implicated and reason for false
implication is that the mother of victim is
interested in family property. Learned
counsel further submitted that some of
accused persons have approached this
Court challenging charge sheet, cognizance
order and summoning order by filing
respective applications under Section 482
Cr.P.C. and this Court has granted interim
protection that no coercive measures shall
be taken against applicants therein.

6. Learned counsel also submitted that
subsequently mother of victim has lodged
an FIR against applicant (her husband) that
many years ago she was kidnapped and
forced to marry him.

7. Above submissions are opposed by
Sri
Paritosh
Malviya,
learned
AGA
appearing for State. He submitted that a
minor girl was subjected to sexual assault
by many persons for several years. A
conspiracy was hatched to put victim in
prostitution. For a minor girl, who has gone
through such a traumatic ordeal, it is
possible that she may not be able to narrate
the date and time of offence but this will
not dilute the seriousness of crime. There
446 INDIAN LAW REPORTS ALLAHABAD SERIES
are other factors also that she was always
given sedatives and threat was also given to
her that in case of any report damage would
be caused to her mother, younger brother
and sister. Learned AGA, however, has not
disputed that other co-accused have been
granted bail however he has submitted that
the reasons given in bail orders are not in
terms of judgements passed by Supreme
Court in Manoj Kumar Khokhar vs.
State of Rajasthan and Anr. (2022)3 SCC
501 and Brijmani Devi vs. Pappu Kumar
(2022) 4 SCC 497.

8. During hearing of this case, Court
has called Chairperson, Child Welfare
Committee, Lalitpur, to get first hand
information about victim. Sri Raj Kumar
Jain,
Chairperson,
Child
Welfare
Committee, Lalitpur has appeared before
this Court and stated that victim was given
an option for psychological counselling,
however, she refused as well as she has
refused for support persons also though her
statement was recorded. She was provided
financial assistance also and presently she
is a student of Graduation.

9. Aforesaid exercise was done with
the object that on the basis of above
referred allegations, which are very
serious, victim must have suffered mental
trauma for number of years and for that
she requires a proper counselling. In the
present case it was provided but she has
not accepted the request of support
person. The documents submitted by
Child Welfare Committee include a
statement given by victim before Child
Welfare Committee, wherein allegations
made in FIR, statements recorded under
Sections 161 and 164 Cr.P.C. were
completely supported, therefore, Court
proceed to consider this bail application
on premise that victim's version still
remain same, despite she now being a
major girl.

10. It is not in dispute that number
of co-accused have been granted bail and
some of accused persons have also
approached this Court for quashing of
criminal proceedings, wherein interim
protection qua to applicants therein have
been granted. I have also perused the bail
orders passed by Coordinate Benches of
this Court whereby co-accused have been
granted bail. Though some of the orders
appear to be very detail however no
reason, as required by judgments passed
by Supreme Court in Manoj Kumar
Khokhar (supra) and Brijmani Devi
(supra), has been given. Therefore, plea
of parity cannot be accepted and Court
proceed to consider this bail application
on its own merit.

11. Applicant's relationship with
victim is not in dispute that he is the father
of victim. According to statement of victim,
which remained consistent in FIR and
statements under Sections 161 and 164
Cr.P.C., the first alleged perpetrator was her
father (applicant), when she was a student
of Class VI and she repeated the offence
thereafter also and further that he allegedly
put victim to have physical relationship
with other persons. The co-accused have
allegedly raped her with consent of her
father and even she was raped by her close
relatives and other persons also. The
allegations, therefore, are very serious
against applicant as allegedly he has
betrayed a pious relationship of father and
daughter.

12. Still there is merit in the argument
of learned counsel for applicant that
narration of prosecution story by victim
appears to be exaggerated. Victim has
4 All. Rajendra Agarwal urf Bablu Vs. State of U.P. & Ors.
447
narrated number of incidents of rape by
number of persons during a period of many
years. However, she was not able to point
out a single place of occurrence as well as a
single date or month of occurrence. Court
is conscious that narration of facts of victim
remained consistent in FIR lodged by her
and in her statements recorded under
Sections 161 and 164 Cr.P.C., however, a
factor of improbability also comes into
picture, when conduct of victim's mother is
considered that she has not make any
attempt to protest or lodge any FIR despite
she was aware that her daughter was
undergoing sexual assault for several years.

13. In addition to above, there is
another factor which requires consideration
that all the co-accused have been granted
bail by this Court against whom very
serious allegation of rape was levelled. In
these circumstances, Court is inclined to
grant bail to applicant also.

14. However, applicant is directed to
remain present on each and every date as
and when required by Trial Court during
trial and in case any application for
exemption on vague ground is filed, the
same shall be a ground for Trial Court to
cancel bail immediately.

15. Let the applicant-Rajendra
Agarwal alias Bablu 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 will not tamper with
prosecution evidence and will not harm or
harass the victim/complainant in any
manner whatsoever.

(ii) The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment or exemption from
appearance on the date fixed in trial. 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.

(iii) 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.

(iv) The Trial Court may make all
possible efforts/endeavour and try to
conclude the trial expeditiously, preferably
within a period of six months after release
of applicant, if there is no other legal
impediment.

(v) The applicant will not enter in the
area of District Lalitpur for a period of six
months from today, except for the purpose
of present case with prior information to
Trial Court and meanwhile, Trial Court is
directed to record statement of victim.

16. The 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 and send the applicant to prison.

17. The bail application is allowed.

18. It is made clear that the
observations made hereinabove are only for
the purpose of adjudicating the present bail
application.
448 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Before parting with this judgment,
I propose to deal with the duties,
responsibilities and statutory status of Child
Welfare Committee.

20. Under Chapter III of the Juvenile
Justice (Care and Protection of Children)
Act, 2000 (hereinafter referred to as "JJ
Act, 2000") under the heading of "Child in
Need of Care and Protection", concept of
Child Welfare Committee was introduced.

21. Section 29 of JJ Act, 2000
describes formation of Child Welfare
Committee. Section 30 provides procedure
etc. in relation to Committee. Section 31
provides
powers
of
Committee
that
Committee shall have the final authority to
dispose of cases for the care, protection,
treatment, development and rehabilitation
of children as well as to provide for their
basic needs and protection of human rights.
These provisions are almost reiterated in
Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter referred to
as "JJ Act, 2015") under Chapter V from
Section 27 onwards.

22. In exercise of powers conferred
by proviso to sub-section (1) of Section 110
of JJ Act, 2015 State of U.P. has framed
Uttar Pradesh Juvenile Justice (Care and
Protection
of
Children)
Rules,
2019
(hereinafter referred to as "JJ Rules,
2019") with conforms to Model Rules
made by Government of India.

23. Rules with regard to Child
Welfare Committee are mentioned in
Chapter IV of JJ Rules, 2019. Rule 16
provides rules and procedure of Committee
and Rule 17 provides additional functions
and responsibilities of Committee. Said
rules are reproduced hereinafter:

"16.
Rules
and
Procedures
of
Committee.-(1)
The
Chairperson
and
members of the Committee shall be paid
such sitting allowance, travel allowance
and any other allowance, as the State
Government may prescribe but not less
than Rs. 1500 (One Thousand and Five
Hundred) per sitting.

(2) A visit to an existing Child Care
Institution by the Committee shall be
considered as a sitting of the Committee.

(3) The Committee shall hold its
sittings in the premises of a children's home
or at a place in proximity to the children's
home or, at a suitable premises in any
institution run under the Act for children in
need of care and protection.

(4) The Committee shall ensure that no
person(s) un-connected with the case
remains present in the room when the
session is in progress.

(5) The Committee shall ensure that
only those person(s), in the presence of
whom the child feels comfortable, shall be
allowed to remain present during the
sitting.
(6) At least one member of the Committee
shall always be available or accessible to
take cognizance of any matter of emergency
and issue necessary directions to the
Special Juvenile Police Unit or local police
of the district. For this purpose the
Chairperson of the Committee shall draw
up a monthly duty roster of the Committee
members who shall be available and
accessible every day, including on Sundays
and holidays.

The roster shall be circulated in
advance to all the police stations, the Chief
Judicial
Magistrate/Chief
Metropolitan
Magistrate, the District Judge. the District
Magistrate, the Board, the District Child
Protection Unit and the Special Juvenile
Police Unit.
4 All. Rajendra Agarwal urf Bablu Vs. State of U.P. & Ors.
449

(7) The Committee shall sit on all
working days for a minimum of six hours
commensurate with the working hours of a
Magistrate Court, unless the case pendency
is less in a particular district and the State
Government concerned issues an order in
this regard:

Provided that the State Government
may. by notification in the Official Gazette
constitute more than one Committee in a
district after giving due consideration to
the pendency of the cases, area or terrain
of the district. population density or any
other consideration.

(8) On receiving information about a
child or children in need of care and
protection, who cannot be produced before
the Committee, the Committee shall reach
out to the child or children and hold its
sitting at a place that is convenient for such
child or children.

(9) While communicating with the
child, the Committee members shall use
child friendly techniques through their
conduct.

(10) The Committee shall hold its
sittings in a child-friendly premises which
shall not look like a court room in any
manner and the sitting arrangement should
be such to enable the Committee to interact
with the child face to face.

(11) The Committee shall not sit on a
raised platform and there shall be no
barriers, such as witness boxes or bars
between the Committee and the children.

(12) The Committee shall be provided
infrastructure and staff by the State
Government."

"17.
Additional
Functions
and
Responsibilities
of
the
Committee.-In
addition
to
the
functions
and
responsibilities of the Committee under
Section 30 of the Act, the Committee shall
perform the following functions to achieve
the objectives of the Act, namely:

(i) document and maintain detailed
case record along with a case summary of
every case dealt by the Committee in Form
15;

(ii) maintain a suggestion box or
grievance redressal box at a prominent
place in the premises of the Committee to
encourage inputs from children and adults
alike which shall be operated by the
District Magistrate or his nominee;

(iii) ensure smooth functioning of
Children's Committees in the Child Care
Institutions for children in need of care and
protection within its jurisdiction, for
realising children's participation in the
affairs and management of the said Child
Care Institutions;

(iv) review the Children's Suggestion
Book at least once a month;

(v) send quarterly information in
Form 16 about children in need of care and
protection received by it to the District
Magistrate with all relevant details on
nature of disposal of cases, pending cases
and reasons for such pendency:

(vi)
wherever
required,
issue
rehabilitation card in Form 14 to children
in need of care and protection to monitor
their progress;
(vii) maintain the following records in a
register:

(a) entries of the cases listed in a day
and next date and the Committee shall
prepare a daily cause list of the cases
before it;

(b) entries and particulars of children
brought before the Committee and details
of the Child Care Institution where the
children are placed or the address where
the children are sent;

(c) execution of bonds;

(d) movement including visits to
institutions;

(e) children declared legally free for
adoption;
450 INDIAN LAW REPORTS ALLAHABAD SERIES

(f) children recommended for or
placed in sponsorship;

(g) children placed in individual or
group foster care;

(h) children transferred to or received
from another Committee;

(i) children for whom follow up is to
be done;

(j) children placed in aftercare:

(k)
inspection
record
of
the
Committee;

(l) record of Minutes of the meetings of
the Committee:

(m) correspondence received and sent;

(n) any other record or register which
the Committee may require.

(viii) all information listed in clause
(vii) of this rule may be digitized and a
software may be developed by the State
Government."

24. Later on there were certain
amendments w.e.f. 01.09.2022 in Rule 15
of Juvenile Justice (Care and Protection of
Children) Model Rules, 2016, which still to
be incorporated in in JJ Rules, 2019.

25. The above referred procedure of
Committee and additional functions and
responsibilities of Committee entrusted a
great responsibility to Child Welfare
Committee that it shall hold its sittings in
the premises of a children's home or, at a
place in proximity of children's home or, at
a suitable premises in any institution run
under the Act for children in need of care
and protection. It further provides that it
shall be ensured that no person or persons
unconnected with case remains present in
room when session is in progress and only
those persons shall be allowed to remain
present, in presence of whom child feels
comfortable. Committee shall hold its
sittings in a child friendly premises which
shall not look like a Court Room in any
manner. Committee has to review the
Children's Suggestion Book atleast once in
a month.

26. Concept of Child Welfare
Committee
has
important
factor
in
implementation of JJ Act, 2015 and JJ
Rules,
2019.
In
the
present
case
considering gravity of allegations, victim
does require a very special and effective
counselling by an experienced counsellor.

27. In the backdrop of above referred
statutory provisions it is clear that Child
Welfare
Committee
has
a
great
responsibility when it is dealing with a case
of minor girl victim, as the case in hand,
who has suffered mental and physical
trauma of repeated assault for many years.
In such cases it would not be a mere
formality of Child Welfare Committee to
comply with above referred statutory
provisions but it would require more
cautious approach. In such cases victim
should be dealt with extra care and
responsibility and for that members of
Child Welfare Committee required a trained
support
system,
who
can
undertake
counselling of such victims keeping in
view their sufferings.

28.

National
Commission
for
Protection of Child Rights (NCPCR) has
launched a training module for Child
Welfare Committee. The module will be
more beneficiary if it includes a requisite
training to deal with minor victims of
sexual assault.

29. Effect of act/ offence of rape is
not momentary but it got pasted on mind,
heart, body and soul of the victim and the
object of Child Welfare Committee is to
undertake such endeavours to erase such
memories by counselling and it should be
4 All. Ankit Kumar Yadav Vs. State of U.P.
451
done by well trained counsellors who have
experience of treating such minor victims
under proper guidance.

30. In view of above, Ministry of
Women
and
Child
Development,
Government of U.P., Lucknow through its
Secretary is directed to ponder on above
referred issue by initiating process of
interaction with all stakeholders in order to
make Child Welfare Committee and its
Members
more
competent,
more
responsible, more generous and more
compassionate to deal with such cases, as
the case in hand.

31. While undertaking above exercise
it shall also take note the provisions of Rule
35 of JJ Rules, 2019 which provides mental
health for children at Child Care Institution.
Sub-rule (5) thereof provides that every
Institution shall have the services of trained
counsellors or collaboration with external
agencies such as child guidance centres,
psychology and psychiatric departments or
similar Government and non-Governmental
agencies, for specialized and regular
individual therapy for child.

32. The object of above exercise is
to
provide
sincere
and
appropriate
counselling to minor victim and exercise
shall
not
be
limited
to
above
observations. It is up to the senior
officers of Department to come up with a
concrete plan in order to achieve the
above referred observations of this Court.

33. Registrar (Compliance) is directed
to send a copy of this order to Secretary,
Ministry
of
Women
and
Child
Development,
Government
of
U.P.,
Lucknow who shall undertake above
exercise and submit report thereof before
this Court.

34. List this matter after six months
before appropriate Bench only for perusal
of report submitted by Secretary, Ministry
of
Women
and
Child
Development,
Government of U.P., Lucknow.
----------
(2023) 4 ILRA 451
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Misc. IInd Bail Application No. 51332 of
2022

Ankit Kumar Yadav ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Dr. D.B. Singh

Counsel for the Respondent:
Sri Sunil Srivastava, A.G.A.

(A) Criminal Law - Second Bail - Indian
Penal Code, 1860 - Sections 302 & 201 -
First bail application rejected by reasoned order
- co-accused granted bail - subsequent event -
applicant in jail since 03.03.2022 - charges not
framed till date - Suppression of a material fact
by not disclosing application for discharge -
Applicant and co-accused were arrested on the
spot - hammer and phones recovered from their
motorcycle -9 c.m. long with head of diameter
of 4 c.m- Observation of Coordinate Bench -
"recovery of vivo mobile phone" from applicant -
false and planted.(Para -2 to 12 ,16)

HELD:- Observation without consideration of
any
material
on
record
has
no
legal
consequence. No subsequent event of fact or
law which requires consideration of Court in the
present second bail application.(Para - 16,17)

Second Bail application rejected. (E-7)