Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15021 of 2018 Applicant :- Akhtarul Imam @ Tambi @ Akhtarul Opposite Party :- State Of U.P.
Counsel for Applicant :- Ajatshatru Pandey,Abhishek Kumar Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the material on record.
By means of this application, the applicant who is involved in case crime no. 1512 of 2017, under Sections 376D, 323 and 395 IPC, P.S. Kotwali Khalilabad, District Sant Kabir Nagar is seeking enlargement on bail during the trial.
Learned counsel for the applicant submitted that though the FIR was registered by victim herself on the same day under Section 376D, 323 IPC but in the incident which is said to have been taken place in broad day light against unknown persons. She in her statement under Section 161 Cr.P.C. which was recorded on 25.07.2017 states that she is married woman and she remain issueless even after her three years of marriage. Again in 161 Cr.P.C. statement was changed to make an attempt of rape upon her. There after in 164 Cr.P.C. statement which was recorded after 1- 1/2 months on 04.09.2017 in which she reveals the name of the assailants for the first time. In which she has stated that the applicant and two others gang raped her after forcibly administering of liquor (BEAR). It is unswallable proposition that a full grown up lady would be forced to consume liquor against her wish and desire in which also subject matter of gang rape by the applicant and on other. Medical report does not support the prosecution case. The case of false implication cannot be ruled out because it is impossible that lady who is subject matter of gang rape would not identify the assailants. Besides these she has stated that she was forced to have liqour by these assailants. He lastly submitted that the applicant whose role is clearly distinguishable from that of co-accused Jogendra is in jail since 22.02.2018 is entitled to be enlarged on bail during the pendency of trial.
Per contra learned AGA opposed the prayer for bail could not dispute the aforementioned facts.
Considering the submissions made by learned counsel for the applicant as well as learned AGA and without expressing any opinion on the merits of the case and in the totality of the circumstances the prosecution story is not generating any confidence, I find it to be a fit case for bail.
In view of the above, let the applicant- Akhtarul Imam @ Tambi @ Akhtarul be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned in case crime no. 1512 of 2017, under Sections 376D, 323 and 395 IPC, P.S. Kotwali Khalilabad, District Sant Kabir Nagar with the following conditions:-
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, 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 THE HIM/HER 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.
However, it is made clear that any wilful 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 :- 24.4.2018 Abhishek Sri.