Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40243 of 2018 Applicant :- Brij Mohan Opposite Party :- State Of U.P.
Counsel for Applicant :- Anil Kumar Counsel for Opposite Party :- G.A.,Prasant Ji Pandey A/P0849/2013
Hon'ble J.J. Munir,J.
Counter affidavit filed on behalf of the State is taken on record.
This is a bail application on behalf of the applicant Brij Mohan in connection with Case Crime No.211 of 2017, under Section 376 IPC P.S. Kotwali Hathras District Hathras.
Heard Sri S.N. Singh, learned counsel for the applicant, Sri Prasant Ji Pandey, learned counsel appearing on behalf of the complainant and Sri Akhilesh Kumar Mishra, learned AGA along with Sri Ashutosh Diljan, learned counsel appearing on behalf of the State.
The submission of learned counsel for the applicant is that the present case is a patently motivated prosecution. It is submitted that the niece of the applicant, Usha, a daughter of the applicant's cousin late Nandlal, was molested by the prosecutrix's husband Khajan Rathor on 29.01.2017, regarding which the widow of the applicant's cousin lodged an FIR on 31.01.2017 bearing Case Crime No.122 of 2017, under Sections 354, 506 IPC and Section 8 of the POCSO Act against Khajan Rathor, the prosecutrix's husband. In the said case, the police after investigation, have filed a charge sheet, a copy of which has been placed at page no.60 of the paper book, against the applicant's husband, Khajan Rathor S/o Late Shyamlal on 25.03.2017. In retaliation to the said proceedings taken by his cousin's widow, the prosecutrix has lodged the present FIR on 01.03.2017 through an application under Section 156 (3) Cr.P.C. showing the occurrence dated 30.01.2017 alleging commission of offences punishable under Sections 376, 323, 506 IPC giving rise to Case Crime No.211 of 2017, P.S. Hathras Kotwali, District Hathras against the applicant Brij Mohan in order to spite him, and to coerce his cousin's widow into a compromise in the case initiated on the basis of her FIR against the prosecutrix's husband for the molestation of her minor daughter. The Police in the said FIR after investigation filed a final report on 13.04.2017, a copy of which is placed at page no.67 of the paper book, and also sent a report against the victim for her prosecution under Section 182 IPC in lodging a false information with the police dated 14.04.2017. It is submitted that post submission of the final report, a protest was filed on 27.04.2017, on the basis of which the learned Chief Judicial Magistrate rejected the final report, and summoned the applicant to stand his trial for the offences charged, whereas the final report was accepted against co- accused Dabbu. It is emphatically argued that the sole purpose of the present motivated prosecution is to save her husband from the consequences of prosecution launched at the instance of the widow of the applicant's late cousin by exerting oblique pressure upon the applicant to coerce her into withdrawing. In addition, it is argued that the applicant is an old man of 62 years, and is in jail since 27.08.2018. He has no criminal antecedents. In the background of such facts, it is submitted that there is no justification to detain the applicant pending trial.
Learned AGA has opposed the prayer for bail.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, in particular, the fact that there is a criminal prosecution initiated by the widow of the applicant's cousin relating to her minor daughter against the prosecutrix's husband on charges of molestation, the fact that a charge sheet has been filed there and the the prosecutrix's husband is facing trial, the fact that soon thereafter the present FIR has been brought in, charging the applicant of allegations that after investigation have been found hollow, the fact that the applicant is an old man of 62 years with no criminal history and is in jail since 27.08.2018, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Brij Mohan involved in Case Crime No. 211 of 2017 under Section 376 IPC P.S. Kotwali Hathras District Hathras be released on bail on executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence lead unaffected by anything said in this order.
Order Date :- 22.1.2019 Deepak