In pursuance of the order dated 26.07.2021, Naveena Shukla, Circle Officer, has filed an affidavit and informed that informant as well as his brother were properly informed on 28.07.2021 about the listing of the case and written information is duly signed by informant as well as his brother, which is appended as CA-1, but no one has put in appearance on behalf of opposite party No.2, therefore, matter is proceeded.
Heard, learned counsel for the applicant, learned A.G.A for the State of U.P. and perused the record.
The present bail application has been filed on behalf of the applicant in Case Crime No.590 of 2020, under Sections 452, 376-AB, 511 I.P.C. and Section 5/18 of the Protection of Children from Sexual Offences Act, Police Station-Malihabad, District-Lucknow, with the prayer to enlarge him on bail.
The submission of learned counsel for the applicant is that the applicant is an innocent person and has been falsely implicated in the case, he is having no previous criminal history and in jail since 16.12.2020. It is further submitted on behalf of applicant that on 07.09.2020, some quarrel was taken place in between the applicant and informant and Police team reached on the spot, applicant as well as complainant of the present case and his brother Raja Ram were taken into custody and proceeding under Sections 151, 107 and 116 Cr.P.C. was initiated and challani report was forwarded, which was entered into G.D. No.41, dated 07.09.2020 at 12 :30 hours. He further submitted that in the said quarrel, applicant was beaten by Raja Ram and Brij Lal (informant of the present case) and after medical examination, application under Section 156 (3) Cr.P.C. was moved on 14.09.2020 and the Police Report was called by Special Chief Judicial Magistrate (Custom), Lucknow, and in the Police Report, it was categorically mentioned that there was a dispute in between the applicant and informant of the present case due to some old enmity. Vide order dated 19.01.2021, Special Chief Judicial Magistrate (custom), Lucknow has treated the said application of applicant as criminal complaint. When it came into the knowledge of the informant of the present case, then he moved an application before the National Human Right Commission, New Delhi and under the order of the National Human Right Commission, FIR in question was lodged on 15.12.2020.
Learned counsel for the applicant has submitted that it is highly improbable that Police reached on the spot and applicant as well as informant and his brother were taken into custody on 07.09.2020 at 11:45 a.m., but the fact as narrated in the present FIR, was not informed to the Police Officer in relation to out-rage the modesty of prosecutrix (daughter of the informant). He further submitted that this fact is properly pleaded in the bail application, but it has not been denied by the State. He further submitted that during the course of investigation, challani report as mentioned above was not taken into consideration and charge-sheet was prepared on the basis of statement of the prosecutrix and her family members, and thereafter, under the order of Circle Officer, further investigation was conducted and second statement of the prosecutrix was recorded on 10.01.2021 and thereafter, charge-sheet of dated 15.01.2021 was prepared. He further submitted that prosecution fails to consider the challani report, which was forwarded on 07.09.2020 after taking into custody of applicant as well as informant and his brother. In these circumstances, the applicant is entitled for bail. In case of being enlarged on bail, he will not misuse the liberty of bail.
Learned A.G.A. has opposed the prayer for grant of bail to the applicant and submitted that during the course of investigation, statement of the informant as well as prosecutrix were recorded and thereafter, charge-sheet was filed, but he does not dispute this fact that informant and his brother as well as applicant were challaned on 07.09.2020 and this fact was entered into general diary on the same day at GD No.41.
Considering the rival submissions of learned counsel for parties, material available on record as well as totality of fact and circumstances, and without expressing any opinion on the merits of the case, I am of the view that the applicant is entitled to be released on bail.
Let applicant -Ashish @ Bauwa- be released on bail in the aforesaid case crime, on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
(1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.
(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.
(3) Applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 Cr.P.C.
(4) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(5) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(6) 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.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
The trial court is directed to conclude the trial of the present case, if possible, within a period of one year from the date of production/receipt of certified copy of this order, in accordance with law.
The registry is directed to communicate the order to the trial court.
Order Date :- 26.8.2021 Amit/-