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Babloo vs State Of U P

High Court Of Judicature at Allahabad|28 July, 2021
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JUDGMENT / ORDER

Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29664 of 2020 Applicant :- Babloo Opposite Party :- State of U.P.
Counsel for Applicant :- Mohit Gautam,Rajesh Kumar Dubey Counsel for Opposite Party :- G.A.,Shishir Kumar
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri R.K. Dubey, learned counsel for the applicant, learned counsel for the complainant, learned A.G.A. and perused the record. Sri Shishir Kumar counsel for the first informant remained absent during the hearing.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No. 67 of 2020 under Sections 363, 366 and 376 (2) I.P.C. and 4 (2) POCSO Act, police station Subhash Nagar, District Bareilly after rejection of his Bail Application, vide order dated 09.07.2020 passed by Special Judge (POCSO Act)/Additional Session Judge, Bareilly.
3. In the F.I.R. dated 08.02.2020, it was alleged that the applicant took the victim, a girl aged about 15 years on pretext that her brother has met with an accident on 08.02.2020. When other family members came back home, they reached the place of the applicant, who was found missing along with his family members. It was alleged that applicant along with his family members have abducted the victim.
4. Learned counsel for the applicant submits that the victim was in love with the applicant. She eloped with him and got married and was living as husband and wife. However, the victim in her statement under Section 164 Cr.P.C. has alleged that she was abducted by the applicant and was repeatedly raped also. However, in subsequent statement, she denied such allegation. According to medical examination, victim's age was opined about 18 years. She has stated during her medical examination that she her own will went along with the applicant. It is lastly submitted that applicant is languishing in jail since 21.03.2020, there is no likelihood of early disposal of trial and the applicant undertakes that if he is enlarged on bail, he will never misuse his liberty, will not commit any offence during bail and will co- operate in the trial.
5. Learned A.G.A. has submitted that victim is a minor girl and relied upon an alleged transfer certificate issued in April, 2020 of the victim wherein her date of birth was shown as 15.07.2004 and further relied upon the statement of the victim recorded under Section 164 Cr.P.C. to submit that she has supported the prosecution case.
(A) Law on bail is well settled that 'Bail is rule and Jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused.
(B) It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered.
(C) It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
(D) The Court while granting bail in the case involving sexual offence against a woman should not mandate such bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others vs. State of Madhya Pradesh and another, reported in 2021 SCC Online SC 230, in this regard.
6. Considering the rival submission, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tampering with the evidence, relevant factors mentioned above, particularly that the victim's age is determined about 18 years in her medical examination. The alleged Transfer Certificate was issued recently. Victim has changed her version in statement recorded under Sections 161, 164 Cr.P.C. and in her second statement recorded under Section 161 Cr.P.C. and also before the Doctor. There is also some delay in lodging the F.I.R. During medical examination no external or internal injury was seen. Charge- sheet has already been filed and also considering that there is no previous criminal history of the applicant and he is languishing in jail since 21.03.2020, this Court is of the view that a case of grant of bail is made out.
7. Let applicant - Babloo 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 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 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 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 Trial Court absence of applicant is deliberate or without sufficient cause, then it shall be open for Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and Trial Court may proceed against him under Section 229-A IPC.
8. 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.
9. The bail application is allowed.
10. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
11. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
12. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
13. It is expected from the trial court that trial of this case will be concluded expeditiously and while granting any adjournment, trial court will take note of the provisions of Section 309 Cr.P.C.
14. 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 :- 28.7.2021 Shiraz Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.07.30 17:42:07 IST Reason: Document Owner Location: High Court of Judicature at Allahabad
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Title

Babloo vs State Of U P

Court

High Court Of Judicature at Allahabad

JudgmentDate
28 July, 2021
Judges
  • Saurabh Shyam Shamshery
Advocates
  • Mohit Gautam Rajesh Kumar Dubey