Court No. - 43
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9399 of 2021 Applicant :- Aleem Opposite Party :- State of U.P. Counsel for Applicant :- Kalim Uddin Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
The matter has been taken up through Video Conferencing.
Heard Sri Kalim Uddin, learned counsel for the applicant, Sri V.K. Maurya, learned A.G.A. for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Aleem, seeking enlargement on bail during trial in connection with Case Crime No.33 of 2019, under Sections 323, 363, 366, 376-D, 120-B I.P.C. and Section 5G/6 POCSO Act, Police Station Iradatnagar, District Agra.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is further argued that the applicant is not named in F.I.R. but his name came into light first time in the statement of victim recorded under Section 164 Cr.P.C. Initially the victim had refused for medical examination on 12.6.2019, copy of the said document is annexed as annexure no.3 at page 26A of the paper book but later on her medical examination was done on 23.6.2019 which is annexed from page 33 onwards and even in the said report, no injury mark was present and the opinion of the doctor that sexual assault cannot be ruled out is without any basis. It is further argued that the victim states before the doctor that she went with Sameer as per his own free will. By that time, no injury was found on her person. Later on after three days, her 164 Cr.P.C. statement was recorded in which about 20 persons including applicant have been implicated. Victim is major girl aged about more than 17 years. She is capable to understand what is happening with her. During journey with the alleged accused Sameer, she did not make alarm to invite attention of public. The victim appears to be a consenting party with Sameer. The applicant has no role in the incident. It is next submitted that co-accused Jaggi @ Kadar Khan and Anvar have been enlarged on bail by the co-ordinate Benches of this Court in Criminal Misc. Bail Application Nos. 4190 of 2020 and 44282 of 2020 vide orders dated 5.2.2020 and 14.12.2020, copies of the said orders are being annexed as annexure nos.7 and 8 to the affidavit filed in support of bail application. The case of the applicant stands on identical footing, hence the applicant is also entitled for bail on the ground of parity. It has also been pointed out that the applicant is not having any criminal history as stated in para 18 of the affidavit and is in jail since 13.11.2019.
Per contra learned A.G.A. has opposed the prayer for bail.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant-Aleem, 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 will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) 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.
(iv) 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.
(v) 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
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.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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.
(Samit Gopal, J.) Order Date :- 24.5.2021 Gaurav