Supplementary counter affidavit filed today on behalf of the State is taken on record.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
This is second bail application moved on behalf of the applicant. First bail application has been rejected by a co-ordinate Bench of this Court vide order dated 11.12.2012 passed in Bail No.3654 of 2012.
Learned counsel for the applicant submits that accused applicant has falsely been implicated in the present case. It is further submitted that the case is being fixed for evidence of the prosecutrix since 24.08.2018 and till date the prosecutrix has not turned up in the court for her testimony on oath. It is also submitted that all the process as per Cr.P.C. have been issued, but the prosecutrix could not be made available by the prosecution till date. The accused applicant is languishing in jail since 06.08.2011. It is further submitted that there is no possibility of the applicant of fleeing away from judicial custody or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.
Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
Without expressing any opinion on the merits of the case and considering the fact that this case is not being proceeded due to unavailability of the prosecutrix, who is main witness of the case and the applicant is in jail since long, the applicant is entitled to be released on bail in this case.
Let the applicant involved in Case Crime No.616 of 2011, under Sections 376 I.P.C. & 5/6 Immoral Traffic (Prevention) Act, 1956, Police Station Baundi, District Bahraich be released on bail on his 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 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.
Order Date :- 27.8.2019 Anupam S/-