Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28783 of 2019 Applicant :- Atar Khan Opposite Party :- State Of U.P.
Counsel for Applicant :- Rakesh Pati Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned AGA and perused the record.
By means of this application, the applicant who is involved in case crime no. 200/2018, under Sections 366, 376 IPC, P.S. Visharatganj, District- Bareilly is seeking enlargement on bail during the trial.
Learned counsel for the applicant in support of his application for bail submits that the applicant is innocent. He has been falsely implicated. It is further submitted that the FIR was lodged by the father of the prosecutrix on 26.12.2018 against the applicant and on another with the allegation that his minor daughter (15 years) was enticed away by the applicant. It is further contended that for the first time in the statement of the prosecutrix recorded u/s 164 Cr.P.C., she has attributed the role of committing rape upon her to the applicant. Prior to that, neither in the FIR nor in her statement recorded u/s 161 Cr.P.C. any specific role has been attributed to the applicant. It is further submitted that the prosecutrix have never admitted herself for any medical examination, so as to ascertain the fact of the rape upon her. The C.M.O., Bareilly vide order dated 04.01.2019 has opined the age of girl is 18 years. It is wrong to even suggest that the age of girl is 14 years as alleged in the FIR. Presently she is residing with Ajmal Khan as his legally wedded wife. The nikahnama is annexed as Annexure-7 to the petition. It is next submitted that the applicant is in jail since 22.05.2019 having no criminal antecedents except the present one.
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 that the prosecutrix is residing with Ajmal as his legally wedded wife and she has never admitted herself for any medical examination and 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, I am of the view that the applicant has made out a fit case for bail.
Let the applicant Atar 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, 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 THE HIM/HER 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/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 :- 31.7.2019 Nisha