Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19905 of 2018 Applicant :- Anil Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Arvind Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Arvind Kumar Srivastava, learned counsel for the applicant, learned AGA and perused the record.
Contention raised at the Bar is that the applicant has been falsely implicated in the present case. It has been further submitted that the FIR, dated 23.04.2017 was registered 363, 366 and 376-D IPC and 5/6 POCSO Act by the father of the victim with the apprehension that co-accused Arvind might have enticed away his 15 years old daughter in the intervening night 21/22.04.2017. The applicant is neither named in the text of the FIR nor in the statement recorded under section 161 Cr.P.C., or before the statement given before the doctor. At a highly belated stage in the statement under section 164 Cr.P.C., recorded on 05.05.2017 i.e. 13 days of the alleged incident, she swelled her allegation and named present applicant Anil Kumar along with other co-accused Arvind and Ram Nivas, alleging therein that all of them committed gang rape upon her. Co-accused Ram Nivas has already been enlarged on bail vide order dated 16.05.2018 passed in Criminal Misc. Bail Application No. 18174 of 2018 by this Court. The case of the applicant stands on the same footing as of the aforesaid Ram Nivas, therefore, the applicant is also liable to be granted bail on the ground of parity. The applicant is in jail since 13.03.2018, having no criminal antecedents to his credit.
Learned AGA 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 without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail.
Let the applicant Anil Kumar, involved in Case Crime No. 336 of 2017, under sections 363, 366, 376-D IPC and 5/6 of the POCSO Act, P.s. Bharthana, District Etawah 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 :- 28.5.2018 shailesh