NAFR HIGH COURT OF CHHATTISGARH, BILASPUR M.Cr. C. No. 8870 of 2024 Rehman Ali, S/o Shri Mohammad Ali, aged about 23 Years, R/o Shahid Hameed Nagar, Fateh Shah Market, P.S. City Kotwali, Raipur, Chhattisgarh. ---- Applicant (In Jail) Versus State of Chhattisgarh Through Police Station - City Kotwali, District Raipur, Chhattisgarh. ---- Respondent For Appellant : Shri Vikas Shrivastava, Advocate. For Respondent/State : Shri Ankur Kashyap, Dy. G.A.. Hon'ble Shri Justice Sachin Singh Rajput Order on Board 14 /02/2025 1. The applicant has preferred this third bail application filed under Section 483 of the Bhartiya Nagrik Suraksha Sahita, 2023 for grant of regular bail to the applicant as he is in custody since 13/12/2021 in connection with Crime No. 320/2021 registered at Police Station – City Kotwali, Raipur (C.G.) for the offence punishable under Section 363, 376(d), 506 of IPC & Section 4 of POCSO Act (The Protection of Children from Sexual Offences) Act,2012. The first bail application was dismissed as withdrawn in M.Cr.C. No. 3125/2022 vide order dated 11/10/2022. The second bail application was rejected on 04/08/2023 in M.Cr.C. No.3194/2023 . 2. The first bail application of the applicant was dismissed as withdrawn vide order dated 11.10.2022 in MCRC No. 3125 of 2022 and the second bail application was dismissed on merits vide order dated 04.08.2023 in MCRC No. 3194/2023. 3. Case of the prosecution in brief, is that the applicant has committed forcible sexual intercourse with the prosecutrix 4. Learned counsel for the applicant submits that the applicant has been ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.02.14 18:36:16 +0530 -2- arrested on 13.12.2021 and he has already served about more than 4 years as under trial prisoner. He submits that the trial has not concluded as yet as the prosecutrix is not being examined as she is not traceable and the co- accused Javed Akhtar having same allegation has been enlarged on bail by this Court on 06/12/2024 in M.Cr.C. no. 5637/2024, therefore, the application may be allowed. 5. On the other hand, learned counsel for the State opposes the bail application. However, he is not in a position to dispute that the allegation against the present applicant and co-accused Javed Akhtar are similar in nature. 6. I have heard learned counsel for the parties and perused the case diary. 7. As notice issued to parents of victim in M.Cr.C.No. 5637/2024 could not be served on them as they were not traceable, this Court on 15.10.2024 formulated the question of law in the light of Rule 32 of Chhattisgarh High Court Rules, 2007 as under: “If the notices issued to the victim/parents that too on more than one occasion remain un- served for whatever reason, what would be the proper course to be adopted by the Courts while deciding the bail application of the accused who is languishing in jail in connection with a POCSO offence?” Registrar (Judicial) was directed place this matter before Hon’ble the Chief Justice so as to take necessary steps. 8. Division Bench of this Court on 05.11.2024 passed the following order: “In the present reference, there is no substantial question of law involved and the only situation that prevails is that the victim / her parents / guardians could not be served as their whereabouts are not known and as submitted by the learned State counsel, even in the trial, they are not appearing. In the considered opinion of this Court, the reference made by the learned Single Judge itself is unwarranted. Hence, we remand both the matters i.e. the aforesaid Cr.M.P. as well as the MCRC back to the leaned Single -3- Judge for hearing the same on merits.” 9. From perusal of record it is quite evident that on 19/12/2024 notices were issued to the parents of the victim and the matter was directed to be listed on 10th January, 2025. The notice could not be served on the parents of the victim and thereafter on 10/01/2025, a fresh notice was issued to the parents of the victim on their correct and present address. 10. It appears that the said notice was also not served upon them and an affidavit has been filed by the Sudhanshu Baghel, S/o. Shri K.R.Baghel, S.H.O., Police Station City Kotwali Raipur, District – Raipur (C.G.) which reads as under:- 3. That, it is humbly submitted thaat, earlier on 13.06.2023, ASI, Surendra Pathak went to the address of the complainant/prosecution for serving the notice issued to her at her residence address in connection with the subject crime number, but she was not found there, as she was residing at Foothpath and on being inquired, it was revealed that, she went elsewhere for which, a Panchnama was prepared in presence of the concerned witnesses. 4. That, thereafter, again on 23.08.2024, ASI Praveen Pradhan went to the address of the complainantprosecutrix at Siddharth Chowk, Naraiyya Talab, Raipur, PS City Kotwali, Raipur for serving the subject notice, but she was not found there and certain information was received that, presently the complainantprosecutrix is residing at Housing Board Colony,Boriyakala, Raipur, therefore, the said notice was served as Adam Tamil and the report of the same was filed before the Hon'ble Court. 5. That, thereafter, again on 29.08.2024, ASI Praveen Pradhan with Patrolling Team went to the address of the complainantprosecutrix at Siddharth Chowk, Naraiyya Talab, Raipur, PS City Kotwali, Raipur for serving the subject notice, but she was not found there, therefore, the said notice was served as Adam Tamil. 6. That, thereafter, again on 05.09.2024, a Head -4- Constable Suresh Yadav went to the addressed to the complainant/prosecutrix at Housing Board Colony, Boriyakala, Raipur, but she could not be found there and on being inquired from the neighbour, Was revealed that, the complainant has not been residing here since last one year and often she comes and then goes and certain phone numbers of the complainant were provided by the neighbour which are found to be switched off, therefore, a Panchnama was prepared in this regard. 7. That, thereafter, again on 02.10.2024, a Head Constable Adarsh Shukla went to the addressed to the complainant/prosecutrix at Housing Board Colony, Boriyakala, Raipur and also at Siddharth Chowk, Naraiyya Talab, Raipur, PS City Kotwali, Raipur, but she could not be found there and on being inguired from the neighbour, it was revealed that, the complainant has not been residing here since last one year and often she comes and goes, therefore, the said notice was served as Adam Tamil and the report of the same was filed before the Hon'ble Court. Copies of the relevant pages of the Roznamcha Sanha of PS City Kotwali Raipur, are being annexed herewith as ANNEXURE NA/1 for kind perusal of this Hon'ble Court. Copy of the Panchnama dated 05.09.2024, is being annexed herewith as ANNEXURE NA/2 for kind perusal of this Hon'ble Court. 8. That, thereafter the complainant / prosecutrix could not be traced out in her residential place i.e. Housing Board Boriyakala Raipur, a panchnama was prepared in the presence of witnesses who have stated that at present the complainant /prosecutrix was not residing at Housing Board Boriyakala Raipur. Copies of panchnama & rawangi vaspi Sanha are annexed collectively as ANNEXURE NA/3. It is relevant to mention here that the prosecutrix / complainant was earlier resided at near Naraiya Talab, Siddharth Chowk Raipur in which the police authority reached there and prepared panchnama in the presence of -5- witnesses. Copy of panchnama dated 08.01.2025 alongwith Rajnamcha Report are being annexed collectively herewith as ANNEXURE NA/4 ANNEXURE NA/2 for kind perusal of this Hon'ble Court. 9. It is further respectfully submitted by the deponent that again a memo was served in MCRC No. 8870/2024 for execution of notice to the victim / complainant. In respect of the aforesaid notice, on 21/01/2025 the police authonty again proceeded at Naraiya Talab, Siddharth Chowk Raipur for execution of notice to the victim / complainant but she could not found at the place. Consequently a panchnama was prepared in the presence of witnesses. Thereafter on 22/01/2025 the police again reached at Housing Board Colony Boriyakala, Raipur House No. 305, Block No. 20 where she did not found resulting a panchnama was prepared. Copies of the panchnamas is being annexed as ANNEXURE NA/5 (collectively).It is submitted that the police authority making sincere efforts to trace out the victim / complainant but she could not found at the earlier place of resident also present place. 10. It is respectfully submitted by the deponent that a certificate was issued by the Sarpanch Boriyakala mentioning that the complainant / victim family was resided at Housing Board Colony Boriyakala, Raipur House No. 305, Block No. 20 for short span of time and at present they could not resided at the place also in the voter list, the name of complainant's family was not mentioned. Copy of the certificate issued by the Sarpanch, Boriyakala is annexed as ANNEXURE NA/6. Similarly, a certificate was issued by the Parshad of Naraiya Talab, Siddharth Chowk Raipur. Copy of the certificate issued by the Parshad of Naraiya Talab, Siddharth Chowk Raipur is annexed as ANNEXURE NA/7. 11. That, it is humbly submitted that, the non-Applicant/State/Prosecution Agency is doing its best efforts to determine the whereabouts of the -6- subject Gomplainanttprosecutrix and as soon as, the subject notice would be served upon her for further necessary action. 11. Documents have been annexed along with affidavit indicates that despite of all the possible efforts parents of the victim could not be traced. Therefore, looking to the long detention period of the applicant, this court is inclined to decide this application. 12. Considering the submissions made at the bar and also considering that the applicant is in jail since 13.12.2021 and trial is likely to take sometime, co- accused with similar allegations has been enlarged on bail, I am inclined to allow this bail application. 13. Accordingly, the bail application filed by applicant is allowed and it is directed that applicant shall be released on bail on furnishing a personal bond in the sum of Rs. 25,000/- with one solvent surety for the like amount to the satisfaction of the Court on the conditions that- a) Applicant shall appear before the Trial Court regularly on each and every date, unless exempted from appearance. b) The applicant shall not, in any manner, tamper with the prosecution witness. c) If the applicant is found involved in similar offence in future, it will be open for the State to apply for cancellation of Bail. Certified copy as per rules. Sd/- Sd/- Sd/- (Sachin Singh Rajput) Judge Ashish