Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21639
of 2021
Applicant :- Ali Hasan @ Kallua
Opposite Party :- State of U.P.
Counsel for Applicant :- Santosh Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Shri Santosh Kumar Singh, learned counsel for the applicant who is connected virtually, 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.43 of 2021, u/s 363, 366, 376 I.P.C. and Section ¾ of POCSO Act and Section 3(2)(V) of SC/ST Act, P.S.-Rahra, District-Amroha, is seeking his enlargement on bail during trial. The applicant is in jail since 27.2.2021.
Submission of learned counsel for the applicant is that after the investigation, the police has swelled and added Sections 363, 366, 376 I.P.C. and Section 3/4 of POCSO Act and 3(2)(V) of SC/ST Act. The F.I.R. was lodged by the informant Madan Singh against the applicant with the allegation that in the intervening night of 21/22.2.2021 the applicant has enticed away his daughter, whose date of birth as per Aadhar is 01.01.2003. The informant belongs to Jatav community whereas the applicant is Muslim by caste. The girl was eventually recovered and there is no mark of injury found over her person. As per the opinion of doctor the victim girl is about 17+ years, and therefore, if two years is taken to either ways, she becomes a major one. In her 164 statement she in no uncertain terms submits that on her own volition and accord she joined the company of applicant and the applicant has never transgressed his limits in assaulting her sexually. The applicant is having no criminal antecedents.
Learned A.G.A. has opposed the prayer for bail but could not dispute the aforesaid facts.
Taking into account the age of the girl and she has not got any injury over her person and also that from the statement u/s 164 Cr.P.C. the allegation of rape is evaporated altogether, the applicant deserves to be bailed out.
Keeping in view the nature of the offence, 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 Ali Hasan @ Kallua, 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 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 :- 31.5.2021
M. Kumar Digitally signed by Justice Rahul Chaturvedi Date: 2021.06.01 14:02:22 IST Reason: Document Owner Location: High Court of Judicature at Allahabad