Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20680 of 2018 Applicant :- Ajay Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Sohan Lal Yadav,Firdos Ahmad,Vinod Kumar Yadav Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Vinod Kumar Yadav, learned counsel for the applicant and Sri Nagendra Mishra, learned counsel for the State as well as perused the material on record.
The present bail application has been filed by the applicant-Ajay Kumar with a prayer to enlarge him on bail in Case Crime No. 431 of 2017, under Sections 363, 366, 376-A, 506 I.P.C., Sections 3 (2) 5 S.C./S.T. Act and Sections 3/4 POCSO Act, Police Station- Soraon, District-Allahabad, during the pendency of the trial.
It has been argued by learned counsel for the applicant that as per the medical examination report, the victim is 20 years old and she is actually a fully grown up major girl. The first information report has been lodged by Kusum Devi i.e. the mother of the victim, namely, Kamla on 25th August, 2017 alleging therein that on 19th August, 2017 at 09:00 the victim went to school and when she did not return from school, the first informant and other family members tried to search but they could not succeed, because of which the first informant lodged a missing report on 20th August, 2017. Thereafter on 23rd August, 217 at 10:00 a.m., an information has been received by the first informant that the victim has come at the Police Station and she has narrated the entire incident by stating that when she was going to school, the applicant persuaded the victim to go along with him at the place his relative, where after giving some intoxicating substance to the victim due to which she became unconscious, the applicant sexually assaulted her for four days. He also threatened to kill her if she talks about the same to anyone. Thereafter the brother of the applicant, namely, Jabar Singh left the victim at the Police Station in unconscious condition. In the statement recorded under Section 161 Cr.P.C. the victim has reiterated the same version as unfolded in the first information report. In the statement recorded under Section 164 Cr.P.C., the victim has improved her version by stating that when she was going to school, the applicant took her forcefully to the place of his maternal uncle by his motorcycle, where she was kept by the applicant in a room along with his maternal uncle, aunt and four sons of his maternal uncle for four days and thereafter she was kept alone in another room for three days, the said room was open and thereafter on 23rd August, 2017, the brother of the applicant Jabar Singh has dropped her at the Police Station. She also stated that the applicant has established physical relations with the victim without her consent. It has further been argued by the learned counsel for the applicant that from version of the first information report as well as from the statements of the victims it is clear that she knew the applicant very well and she went along with him on her own free will, as she had chance to escape from the aforesaid place where she was kept in a open room. When the applicant took her by his motorcycle she did not make any effort to raise any alarm. It is impossible to believe that a grown up major girl can be taken in most crowded places against her will. There is no evidence that she ever protested or resisted the act of the applicant or made any complaint all this while. The victim was forced to give some incriminating statements against the applicant under coercive pressures. Overall circumstances of the case are that the parties are consenting. It is a clear false case implicating the present applicant by the parents of the victim. Earlier the victim has refused to get her medically examined thereafter on the pressure of the first informant. The applicant has no criminal antecedents to his credit except the present one. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 15th September, 2017. As such the applicant has undergone more than one year seven months of incarceration. Learned counsel for the applicant has lastly contended that considering the larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 3 SCC 22 no useful purpose would be served in keeping the applicant behind the bars.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail. However, the learned A.G.A. could not dispute the factual submissions as urged by the learned counsel for the applicant.
The Apex Court in the case of Sanjay Chandra Vs. CBI, (2012) 1 SCC 40 has held that it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. Seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material on record, without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) 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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 him in accordance with law.
(Manju Rani Chauhan, J.) Order Date :- 29.4.2019 Sushil/-