Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33569 of 2020 Applicant :- Akhilesh @ Bhullur Opposite Party :- State of U.P.
Counsel for Applicant :- Om Prakash Vishwakarma Counsel for Opposite Party :- G.A.,Satyam Narayan
Hon'ble Rahul Chaturvedi,J.
Heard Sri Om Praksh Vishwakarma, learned counsel for the applicant, Sri Satyam Narayan, learned counsel for the first informant, the learned A.G.A. and also perused the record.
By means of the present bail application the applicant, who is facing prosecution in connection with Case Crime No. 107 of 2018, u/s 376, 506, 352 I.P.C., P.S.- Badlapur, District-Jaunpur, is seeking his enlargement on bail during trial. The applicant is in jail since 25.8.2020.
Submission of learned counsel for the applicant is that present F.I.R. was lodged by Phool Chandra (father of the victim) against his own real nephew Akhilesh @ Bhullar (the applicant) with allegation that the applicant has sexually assaulted his own cousin sister (the victim), who is a divorcee lady. It is further submitted that both the parties namely Phool Chandra (the informant) and father of the present applicant namely Chhotelal were warring with regard to some land property and Phool Chandra has obtained an ex-parte decree in his favour. In order to exert pressure upon the applicant, the informant has lodged the present F.I.R. using his own divorcee daughter leveling an allegation of rape upon her by the applicant. Age of the victim is 25 years and as per report of doctor no definite opinion of rape / forcefully intercourse could be given. The site plan also shows that alleged incident of rape is committed in an open space during broad daylight. On this, he has further contended that it is highly unbelievable that applicant will commit offence with her own cousin in an open space in broad daylight. The applicant is in jail since 25.8.2020.
Learned counsel for the first informant and the learned A.G.A. has vehemently rebutted the submissions made by counsel for the applicant by mentioning that no leniency could be shown to the applicant keeping in view the interse relationship between them but could not dispute the aforesaid facts.
Keeping in view the nature of the offence as well as there is no mark of any injury over her person, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant - Akhilesh @ Bhullur, who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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 IPC.
(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., 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 IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
However, it is made clear that any willful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 6.4.2021 Vibha Singh