Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26338 of 2021 Applicant :- Deepak Giri Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jitendra Kumar Yadav Counsel for Opposite Party :- G.A.,Sabhajeet Yadav
Hon'ble Samit Gopal,J.
Heard Sri Jitendra Kumar Yadav, learned counsel for the applicant and Sri S.B. Maurya, learned A.G.A. for the State and perused the material on record.
Sri Sabhajeet Yadav, learned counsel for the first informant is not present even when the matter is taken in the revised list.
There is no counter affidavit filed on behalf of the first informant in spite of stop orders being passed on 09.09.2021 and 17.09.20201. The Court proceeds to hear the matter.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Deepak Giri, seeking enlargement on bail during trial in connection with Case Crime No. 163 of 2020, under Sections 363, 366, 376 I.P.C. and Section 4 Protection of Children from Sexual Offence Act, registered at Police Station Sungarhi, District Pilibhit.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the first information report has been registered against unknown persons stating therein that the daughter of the first informant has been enticed away by some unknown person. It is argued that subsequently the prosecutrix was recovered and her statement under Section 161 Cr.P.C. was recorded, wherein, she has stated that she was in love with the applicant since the last two years and had eloped with him, married him and then physical relationship was established between them with her consent. There was no force on her. It is argued that the prosecutrix was produced before the doctor for medical examination, wherein, she has refused her medical examination. It is further argued that the Chief Medical Officer concerned, has opined the age of the prosecutrix as 16-17 years and by giving benefit of two years, she would be a major. It is argued that the present case, is a case of consent and elopement. It has also been pointed out that the applicant is not having any criminal history as stated in para 15 of the affidavit and he is in jail since 27.05.2020.
Per contra, learned A.G.A. opposed the prayer for bail.
After having heard the learned counsel for the parties and perusing the record, it is evident that the prosecutrix in her statements recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C., has stated that she went with the applicant out of her own sweet-will, solemnized marriage with him and established physical relationship with her consent. The present case appears to be a case of elopement.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Deepak Giri, 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 will not tamper with prosecution evidence and will not harm or harass the victim/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 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
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.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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 :- 27.9.2021 AS Rathore (Samit Gopal,J.)