1. Heard Sri Virendra Pratap Singh, learned counsel for applicant and learned A.G.A. for State.
2. Applicant-Dhiresh Kumar alias Dhiraj has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 03.11.2020 passed by Additional Sessions Judge/Special Judge, POCSO Act, Etah in Case Crime 206 of 2020, under Sections 363, 366, 376-D IPC and 3/4 POCSO Act, Police Station Jalesar, District Etah.
3. Learned counsel for the applicant submits that initially a FIR was lodged against three accused, namely, Ravi, Rakesh and Sandhya Devi under Sections 363, 366 IPC but applicant was not named. Later on statement of victim under Section 161 Cr.P.C. was recorded wherein the name of all the named accused in FIR was mentioned, still name of applicant was not mentioned. Thereafter, statement of victim was recorded under Section 164 Cr.P.C. on 09.06.2020, i.e., after a period of 20 days and for the first time name of applicant was mentioned alongwith Ravi, the named accused in FIR alleging that incident was happened in the night of 20.05.2020 at 2.00 PM. Learned counsel for applicant submits that initially in the FIR timing of incident is mentioned to be 2.00 PM afternoon. He also submits that named accused, Rakesh Kumar, has been enlarged on bail by this Court in Criminal Misc. Bail Application No. 32383 of 2020 vide order dated 15.10.2020. He also submits that applicant is innocent and has been falsely implicated in the present case. Lastly it is submitted that applicant has no criminal history and is languishing in jail since 14.07.2020 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
4. Learned A.G.A. appearing for State has opposed the bail application relying on the contents of FIR and states that name of applicant is specifically mentioned in the statement recorded under Section 164 Cr.P.C. of the victim alongwith one co-accused, Ravi. However, he is not able to dispute the factual submission mentioned hereinabove by counsel for applicant.
5. Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
6. Considering the rival submission, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tampering with the evidence, relevant factors mentioned above, particularly that the name of applicant is not mentioned in the FIR lodged on 21.05.2020 as well as in the statement of the victim recorded under Section 161 Cr.P.C. on 28.05.2020 and for the first time name of applicant was mentioned in the statement of victim recorded under Section 164 Cr.P.C. on 09.06.2020 and also the fact that alleged time of incident has been changed from 2.00 PM afternoon as mentioned in FIR to 2.00 AM as mentioned in the statement of the victim recorded under Section 164 Cr.P.C. and that one of the co-accused has already been granted bail by this Court and no criminal history is reported, this Court is of the view that a case of grant of bail is made out.
7. Let applicant-Dhiresh Kumar alias Dhiraj 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 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 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 Trial Court absence of applicant is deliberate or without sufficient cause, then it shall be open for Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and 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 applicant.
8. 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.
9. The bail application is allowed.
10. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
11. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
12. 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 :- 19.1.2021 AK