Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20327 of 2018 Applicant :- Deva @ Devraj Opposite Party :- State Of U.P.
Counsel for Applicant :- Sudhir Kumar,Jitendra Kumar Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned AGA and perused the record.
By means of this application, the applicant who is involved in case crime no. 459 of 2017, under Sections 363, 376, IPC & 3/4 POCSO Act, 2012, P.S. Bhawanpur, District- Meerut is seeking enlargement on bail during the trial.
Learned counsel for the applicant in support of his application for bail submits that the applicant is innocent. He has been falsely implicated. It is further submitted that the FIR was registered on the very next date i.e. 04.12.2017 of the incident said to have taken place on 13.12.2017 under sections 363 IPC and 7/8 POCSO Act by the father of the prosecutrix against the applicant and two others with the allegation that while her minor daughter went to school, enrout she was enticed away by the accused persons. The girl was eventually recovered on 15.12.2017. After recovery she was put for her ossification test and as per her medico logical report, her age is around 17 years. In her statement recorded u/s 161 Cr.P.C., she has clearly states that she was not sexually assault by the applicant. She was not enticed away by the applicant. In her statement recorded u/s 164 Cr.P.C. she has almost reiterated her previous version that she has went along with the applicant and two others over the motor cycle to Ghaziabad without any effective resistance. In the totality of circumstances, her conduct shows that prima facie she appears to be a consenting party. It is next submitted that the applicant is in jail since 18.12.2017 having no criminal antecedents except the present one.
Learned AGA opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a fit case for bail.
Let the applicant Deva @ Devraj, 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) 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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 29.5.2018 Nisha