Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47053 of 2021 Applicant :- Chiraguddin Alias Arif Opposite Party :- State Of U.P Thru Secretary Home Govt. Up. Lknw.
Counsel for Applicant :- Radhey Shyam Yadav Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Pachori,J.
Heard Sri Radhey Shyam Yadav, learned counsel for the applicant, learned A.G.A. for the State and perused the record of the case.
The present bail application has been filed on behalf of applicant Chiraguddin @ Arif under Section 439 of The Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 248 of 2021, under Sections 363, 366 of the Indian Penal Code and Section 11/12 of Protection of Children From Sexual Offences Act, 2012, registered at Police Station- Rajepur, District- Farrukhabad, during pendency of the trial.
Brief facts of the case are that the first information report has been lodged on 23.07.2021 against the applicant and four others stating therein that the applicant with the help of other co- accused enticed away the minor daughter of the informant on 20.07.2021 at about 03:00 A.M.
It has been submitted by learned counsel for the applicant that the first information report has been lodged on the basis of false and frivolous allegations due to ulterior motive. As per the statement of the victim recorded under Section 161 and 164 Cr.P.C., in which she has been admitted that she left her house on her own and sweet will and she has love affair with applicant and she wants to marry with applicant. He further contended that there is no allegation against the applicant about taking away or enticed away the victim. He further submitted that there is no offence under Section 363 & 366 I.P.C. is made out. As per the judgment of Apex Court in S. Varadrajan Vs. State of Madras, AIR 1965 SC 942 as the victim herself left her house and went with the applicant. She was not enticed away by the applicant.
It is further submitted that no other criminal antecedent to his credit. It is next submitted that there is also no possibility of the applicant either fleeing away from the judicial process or tampering with the witnesses. The applicant, who is languishing in jail since 01.08.2021, undertakes that he will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Per contra learned A.G.A. has opposed the prayer for bail. In case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
It is settled position of law that bail is the rule and committal to jail is an exception in the case of State of Rajasthan Vs. Balchand @ Baliay (1977) 4 SCC 308, the Apex Court observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution and opined para 2 "The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. We do. not intend to be exhaustive but only illustrative." and considering the facts of the case and keeping in mind, the ratio of the Apex Court's judgment in the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicant, Chiraguddin @ Arif be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) 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 him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.
(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
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. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 21.12.2021 Ishan Digitally signed by Justice Sanjay Kumar Pachori Date: 2021.12.24 10:21:44 IST Reason: Document Owner Location: High Court of Judicature at Allahabad