Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28456 of 2019 Applicant :- Amit Kumar @ Pintu Sharma Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Raghvendra Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant as well as learned A.G.A for the State and perused the record. Despite of the notice, no one has put in appearance on behalf of the complainant.
By means of this application, the applicant who is involved in case crime no.775 of 2018, under Section 363, 366, 376, 506 IPC and Section 3/4 of POCSO Act, Police Station-Kotwali, District-Mainpuri is seeking enlargement on bail during the trial.
Submission made by learned counsel for the applicant is that father of the girl has lodged the FIR under Sections 363, 366 IPC and Section 7/8 of POCSO Act against the applicant for the alleged act of enticement of her daughter. This FIR was lodged on 16.07.2018 after delay of almost fortnight. The girl, on her own came back on the very next day. Though, the applicant is being named in the FIR but the role attributed in the statement recorded under Section 161 Cr.P.C. is that she went along with the applicant to Farrukhabad, Shikohabad and various other places without raising any resistance or alarm. In her 161 Cr.P.C. statement, she has not spelled out that the applicant has outraged her modesty during her stay. For the first time, the angle of sexual assault upon her was added in 164 Cr.P.C. statement recorded on 20.07.2018. She has declined to admit herself for any internal medical examination so as to ascertain the factum of rape upon her. As per the FIR, the age of the victim is 16 years. Her conduct too indicates otherwise picture. The applicant is languishing in jail since 13.09.2018.
Learned A.G.A opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and considering the fact that the angle of rape for the first time added in her 164 Cr.P.C. statement coupled with the fact that she has never admitted herself for any internal medical examination, I am of the view that the applicant has made out a case for bail.
Let the applicant-Amit Kumar @ Pintu Sharma, involved in case crime no.775 of 2018, under Section 363, 366, 376, 506 IPC and Section 3/4 of POCSO Act, Police Station-Kotwali, District-Mainpuri be released on bail 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 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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court.
Order Date :- 27.9.2019/Sumit S