Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28248 of 2021 Applicant :- Dharamveer @ Chhotu Opposite Party :- State of U.P.
Counsel for Applicant :- Bijendra Kumar Mishra Counsel for Opposite Party :- G.A.,Narsingh Pandey
Hon'ble Samit Gopal,J.
Heard Sri Bijendra Kumar Mishra, learned counsel for the applicant, Sri Narsingh Pandey, learned counsel for the first informant and Sri Sanjay Singh, learned A.G.A. for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Dharamveer @ Chhotu, seeking enlargement on bail during trial in connection with Case Crime No. 0228 of 2021, under Sections 376 I.P.C., 5/6 POCSO Act, 3(2)(5) Scheduled Castes and Scheduled Tribes Act, registered at Police Station Sector-49 Noida, District Gautam Buddh Nagar.
The first information report of the present case was registered under Section 376 I.P.C., 5(J)(ii) and 6 of the POCSO Act by Sumer, the father of the prosecutrix against the applicant only stating therein that his daughter aged about 17 years was living with him in a rented accommodation and above their house, the applicant was living, who used to allure her daughter and used to take her out to different places after which, the first informant changed his house and was living at a different place but then also the applicant did not stop meeting and talking to his daughter. On 21.04.2021, the applicant came to his house and took away his daughter and established physical relationship with her. He has come to know that his daughter is having a pregnancy of six months. His daughter, repeated times tried to call on the phone of the applicant but his phone is switched off.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the age of the prosecutrix as per the certificate of the Chief Medical Officer, Gautam Buddha Nagar, has been opined to be about 16-17 years. It is further argued that trial in the present case has started in which Sumer, the first informant has been examined as P.W.-1, who has been declared hostile, the copy of which has been annexed as Annexure-SA-1 to the supplementary affidavit and even, the prosecutrix has been examined as P.W.-2, who has also been declared hostile, the copy of which has been annexed as Annexure-SA-2 to the supplementary affidavit and has stated that a boy named Arjun committed rape upon her after which she became pregnant. It is argued that as such, the naming of the applicant is false and the applicant has been falsely implicated in the present case. It has also been pointed out that the applicant is not having any criminal history as stated in para 19 of the affidavit and he is in jail since 23.04.2021.
Per contra, learned A.G.A. opposed the prayer for bail and argued that the applicant is named in the first information report and there are allegations of his committing rape and even the prosecutrix in her statements recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C., has stated that the applicant committed rape upon her and she became pregnant.
Learned counsel for the first informant did not oppose the prayer for bail and argued that the correct facts have been stated by the said two witnesses before the trial court in their deposition. It was one Arjun, who committed rape upon the prosecutrix.
After having heard the learned counsel for the parties and perusing the record, it is evident that that first informant and the prosecutrix have not supported the prosecution case and have been declared hostile by the trial court. The prosecutrix states that she was raped by some person named Arjun.
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- Dharamveer @ Chhotu, 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.
At this stage, learned counsel for the applicant prays that appropriate directions be issued for expeditious disposal of the trial.
However, it is directed that the trial of the aforesaid case pending before the concerned trial court be concluded, as expeditiously as possible, strictly in accordance with Section 309 Cr.P.C. and in view of principles as has been laid down by the Apex Court in the cases of Shailendra Kumar Vs. State of Bihar: (2002) 1 SCC 655; Vinod Kumar Vs. State of Punjab: (2015) 3 SCC 220 and Hussain and Another Vs. Union of India: (2017) 5 SCC 702, subject to any legal impediment, and, further subject to the fact that the working of the trial court is not disturbed of the modalities of working of court due to pandemic Covid-19, the abstinence of work by lawyers and leave of the Presiding Officer.
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.)