Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18470 of 2021 Applicant :- Bunty Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vivek Kumar Singh,Mayank Yadav Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Vivek Kumar Singh, learned counsel for the applicant as well as learned A.G.A for the State and perused the record.
From the record, it is clear that notices were duly served upon opposite party no.2 and for the reasons best known to them, they have not filed any counter affidavit nor has engaged any counsel on their behalf. With the aid and help of learned A.G.A., the Court is proposing to decide the present bail application.
By means of this application, the applicant who is involved in case crime no.947 of 2020, under Section 452, 354, 354B, 376, 511, 506 IPC and Section 7/8 POCSO Act, Police Station-Baghpat, District-Baghpat is seeking enlargement on bail during the trial.
Submission made by learned counsel for the applicant is that for the incident said to have taken place on 27.12.2020, Bittu, father of the victim have lodged the present FIR against sole named accused, Bunty. The allegation is that when his daughter was all alone at her residence, the applicant entered into the house and has tried to ravish her. The poor victim is aged about 15 years and student of Class-XIth. From the record, it is clear that the applicant, who came out from the jail, on bail in connection with yet another case of sodomy with a young boy and charged with Section 377 IPC, now this time, the poor girl was his next prey with whom he tried to commit rape. From the allegations, it is apparent that the applicant indecently hugged her and when she raised alarm, then he fled away from the site after extending threats to her. It was also mentioned that on the previous occasion too, the applicant used to chase the victim. It is contended that the applicant himself is young lad of 20 years and his entire future would be on the stakes, if the bail is refused or he is kept in jail for longer period. The applicant is languishing in jail since 28.12.2020.
Learned counsel for the applicant has conceded that the applicant is engaging in such type of nefarious activities and targeting the young boys and girls to quench his animal instinct, seems to be a paedophile and mentally perverse boy but fact remains that taking into account the 161 and 164 Cr.P.C. statement, action on the part of the applicant would not travel beyond Section 354 IPC. Since, he is committing the offence successively, stringent condition may be imposed upon him after release of his bail.
Learned A.G.A. too opposed the bail but could not dispute the fact that taking
into account his conduct, the allegations would not fall within the category of Section 376 and 511 IPC. As per the recent judgment of Hon'ble the Apex Court in the case of "State of Madhya Pradesh Vs. Mahendra@Golu" in Criminal Appeal No.1827 of 2011 decided on 25.10.2021. Besides this, there is a judgment of Hon'ble the Apex Court in the case of "Tarkeshwar Sahu Vs. State of Bihar(Now Jharkhand)" reported in (2006) 8 Supreme Court Cases 560, paragraph no.27 of which is quoted hereinbelow :-
"27.On careful analysis of the prosecution evidence and documents on record, the appellant cannot be held guilty for committing an offence punishable under Sections 376/511 IPC. According to the version of the prosecution, the appellant had forcibly taken the prosecutrix to his Gumti for committing illicit intercourse with her. But before the appellant could ravish the prosecutrix, she raised an alarm and immediately thereafter, her father PW1 Ram Charan Baitha and other co-villagers residing in the vicinity assembled at the spot and immediately thereafter, the appellant and the prosecutrix came out of the Gumti. In this view of the matter, no offence under Sections 376/511 IPC is made out."
Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties and taking into account the ratio given in the aforesaid judgments of Hon'ble the Apex Court, I am of the view that the applicant has made out a case for bail.
Let the applicant, Bunty, who is involved in the aforesaid case be released on bail on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified :-
(i) THE TRIAL COURT IS DIRECTED TO GEAR UP THE MATTER AND CONCLUDE THE TRIAL POSITIVELY WITHIN A PERIOD OF ONE YEAR FROM THE DATE OF PRODUCTION OF CERTIFIED COPY OF THIS ORDER. DURING THIS PERIOD, THE APPLICANT WOULD ENSURE HIS ATTENDANCE IN POLICE STATION-BHAGHPAT ON EVERY ALTERNATIVE SUNDAY OF EVERY MONTH DURING 10:00 A.M. TO 12:00 P.M DURING THE PERIOD OF TRIAL.
(ii) THE APPLICANT'S PARENT WOULD GIVE A WRITTEN UNDERTAKING BEFORE THE COURT CONCERNED, OWING THE ENTIRE RESPONSIBILITY OF THEIR SON UPON THEM. IN THE FUTURE, IF THE APPLICANT AGAIN FOUND INDULGING IN SUCH TYPE OF THE SEXUAL OFFENCES/ACTIVITIES, IT IS HIS PARENT WOULD BE PERSONALLY RESPONSIBLE FOR THE CONDUCT OF THEIR SON AND THEY WOULD BE FINED FOR RS.ONE LAC IN THE EVENT IF THE APPLICANT AGAIN BECOME CHARGE SHEETED ACCUSED FOR SEXUAL OFFENCE WITH MINORS.
(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 SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.
(v) 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 IPC.
(vi) 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.
(vii) 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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Since, the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
2. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
3. 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 :- 28.10.2021 Sumit S