Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30611 of 2021 Applicant :- Deshveer Opposite Party :- State Of U.P And Another Counsel for Applicant :- Shivajee Singh Sisodiya Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Shivajee Singh Sisodiya, learned counsel for the applicant, Mr. Azad Singh, learned counsel for the State, as well as perused the material on record.
The present bail application has been filed by the applicant- Deshveer with a prayer to enlarge him on bail in Case Crime No.
43 of 2021, under Sections 354, 452, 323, 506 of I.P.C., Sections 7/8 of POCSO ACt, and Section 3 (1) (W) (I) of S.C./.S.T. Act, Police Station-Fatehgarh, District-Bareilly, during the pendency of the trial.
As per the prosecution case, a first information report has been lodged by Dhanesh on 17th February, 2021 against the applicant alleging therein that on 12th February, 2021 at 02:00 p.m., when the girl of the informant, namely, Shivanshi (since victim) was washing the utensils in her house, the applicant entered into his house and by catching hold the hand of the daughter of the informant Shivanshi (victim), he dragged her to a room forcefully, where he tried to molest her. On hearing the noise of the victim, his son, namely, Pintu came and tried to rescue the victim from the applicant, then the applicant beat him by his fists and kicks. The applicant also tried to throttle his neck. Thereafter the applicant, after intimidating to kill, ran away.
It has been argued by the learned counsel for the applicant that the present first information report lodged by the informant is nothing but a bundle of lie and the same has been lodged only due to village politics for exploiting the applicant by indulging his name in a fake, false and frivolous case. The entire prosecution story as unfolded in the first information report is absolutely a self-made story projected by the informant. It has further been argued that though the alleged incident is dated 12th February, 2021, the first information report has been lodged on 17th February, 2021 i.e. after five days from the date of alleged incident.
It has further been argued by the learned counsel for the applicant that neither in the first information report nor in both the statements of the victim recorded under Sections 161 and 164 Cr.P.C., there is no whisper of any caste indicated words used by the applicant against the victim. He, therefore, submits that no case under Section 3 (1) (W) (I) of S.C./.S.T. Act is made out against the applicant.
It has further been argued that after repeated requests of the Investigating Officer, the victim has not been produced by the informant before the Court for recording her statement under Section 164 Cr.P.C. (reference parcha dated 22nd March, 2021, a copy of which has been enclosed as Annexure-4 to the affidavit accompanying the present application). It is only on 9th April, 2021 i.e. after more than one month and 25 days from the date of incident i.e. 12th February, 2021 that the victim has been produced before the Court by the informant, where her statement has been recorded under Section 164 Cr.P.C.
It has also been argued that there is variations in the first information report and both the statements of the victim recorded under Sections 161 and 164 Cr.P.C. It has also been argued that as per the version of the first information report, the applicant dragged the victim to a room forcefully and tried to molest her as also the applicant beat the son of the informant by fists and kicks when he came to rescue the victim, but there is no medical examination report of the victim or the alleged injured son of the informant. The applicant has no criminal antecedents to her credit except the present one. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant being a married lady is in jail since 14th May, 2021.
Per contra learned A.G.A. has opposed the bail prayer of the applicant but he could not dispute the factual submissions as urged by the learned counsel for the applicant.
Considering the nature of the offence, provision for initiation of cases and release the accused, material/evidence brought on record, complicity of the accused, severity of punishment, the submissions made by the learned counsel for the parties, as well as the dictum of Apex Court in the case of Dataram Singh Versus State of U.P. and another, reported in (2018) 3 SCC 22, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) 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 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.
(ii) 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 of the Indian Penal Code.
(iii) 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. is issued and the 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 of the Indian Penal Code.
(iv) 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 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.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
On acceptance of bail and personal bonds, the Lower Court shall transmit photostat copies thereof to this Court for being kept on record.
The party shall file a computer generated copy of this order downloaded from the official website of High Court Allahabad, self- attested by the representative of the applicant, along with a self- attested identify proof of the said person (s) (preferably Aadhar Card).
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.
(Manju Rani Chauhan, J.) Order Date :- 22.9.2021 Sushil/-