Court No. - 42
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22631 of 2019 Applicant :- Dinesh Kumar Alias Bittu Opposite Party :- State Of U.P. Counsel for Applicant :- Veer Singh Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Veer Singh, learned counsel for the applicant and Mohd. Shoaib Khan, learned A.G.A. for the State as well as perused the material on record.
The present bail application has been filed by the applicant-Dinesh Kumar @ Bittu with a prayer to enlarge him on bail in Case Crime No. 802 of 2019, under Sections 452, 376, 511 and 506 I.P.C., Police Station-Kotwali Shamli, District-Shamli, during the pendency of the trial.
It has been argued by learned counsel for the applicant that for the alleged incident dated 20th April, 2019 the first information report has been lodged by the prosecutrix herself on 22nd April, 2019 i.e. after two days from the date of incident, for which no plausible explanation has been given, which makes the prosecution case doubtful. As per the version of the first information report and the statement recorded under Section 161 Cr.P.C., Subham, Bittu and Monu entered into her house and the co-accused Subham sexually assaulted her, whereas the applicant and other co-accused Monu were standing guard outside the door of her house, whereas in the statement recorded under Section 164 Cr.P.C., the prosecutrix has stated that all the three accused persons entered into her house and co-accused Subham tried to sexually assault her while the applicant and co-accused Monu were standing guard outside the door of her house. It has further been argued by the learned counsel for the applicant that there are variations in the statements of the victim under Sections 161 and 164 Cr.P.C. Even otherwise, the role assigned to the applicant along with other co-accused Monu is of standing guard outside the door of the prosecutrix and the role of sexual assault being committed upon her has been assigned to co-accused Subham. As per the medical examination report, the prosecutrix is 18-19 years. It has further been argued that the medical examination report does not support of the prosecution version. The applicant has no criminal antecedents to his 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 is in jail since 25th April, 2019.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
However, the learned A.G.A. could not dispute the factual submissions as urged by the learned counsel for the applicant.
Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and the material on record as well as the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Another reported in (2018) 3 SCC 22 and without expressing any opinion on merit of the case, 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.
(Manju Rani Chauhan, J.) Order Date :- 4.6.2019 Sushil/-