Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18625 of 2021 Applicant :- Ashik Ali @ Ashik Khan Opposite Party :- State of U.P.
Counsel for Applicant :- Ravindra Prakash Srivastava,Paritosh Kumar Malviya Counsel for Opposite Party :- G.A.,Awadhesh Kumar Yadav
Hon'ble Samit Gopal,J.
Heard Sri Paritosh Kumar Malviya, learned counsel for the applicant, Sri Awadhesh Kumar Yadav, learned counsel for the first informant and Sri B.B. Upadhyay, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure which has been filed by the applicant Ashik Ali @ Ashik Khan, seeking enlargement on bail during trial in connection with Case Crime No. 13 of 2021, under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, registered at Police Station Mishraulia, District Siddharth Nagar.
Learned counsel for the applicant argued that although the applicant is named in the First Information Report but he has been falsely implicated in the present case. It is argued that the First Information Report was initially registered under Sections 363, 366 IPC wherein the age of the victim has been stated to be 16 years 9 months and 26 days which is incorrect as from the certificate of the school she was aged about 17 years 9 months. It is further argued that the victim in her statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. has stated that she went out of her own sweet will with the applicant. It is further argued that the victim has stated her age to be 20 years in her statement under Section 161 Cr.P.C. and 164 Cr.P.C. and she further stated that she was having relationship with the applicant since last four years. It is further argued that the victim is a major girl and she went with the applicant out of her own sweet will. She has further stated that physical relationship was established between them out of her own consent as they were living as husband and wife. He further argued that the applicant has no criminal history as stated in para 25(c) of the affidavit and is in jail since 12.02.2021.
Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the victim is a minor girl aged about 17 years and 9 months. It is argued that the applicant is named in the First Information Report and there is an allegation of his kidnapping the victim and then establishing physical relationship with her.
After having heard learned counsels for the parties and perusing the records, it is apparent that the victim is aged about 17 years and 9 months from the school records and by giving benefit of two years of age as per the settled principle of law, the victim would be major. She has stated to have gone out of her own sweet will with the applicant.
Looking to the facts and circumstances of this case, the nature of evidence 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 Ashik Ali @ Ashik Khan, 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.
Order Date :- 12.8.2021 M. ARIF (Samit Gopal, J.)