Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7533 of 2019 Applicant :- Durgesh @ Shailesh Tiwari Opposite Party :- State Of U.P.
Counsel for Applicant :- Ashwani Kumar Pathak Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Sri Balwant Singh, learned counsel filed Vakalatnama on behalf of the informant today is taken on record.
Heard Sri Ashwani Kumar Pathak, learned counsel for the applicant, Sri D.P.S. Chauhan, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed by the applicant- Durgesh @ Shailesh Tiwari with a prayer to enlarge him on bail in Case Crime No. 413 of 2018, under Sections 376, 323 I.P.C., and Section 3/4 POCSO Act, Police Station-Barhalganj, District-Gorakhpur.
It has been argued by learned counsel for the applicant that the present F.I.R. has been lodged after a delay of about 6 days by the mother of the prosecutrix-Km. Anshu with allegation that the applicant established physical relationship with the prosecutrix promising to marry her. There were in relationship for the last one and half year. In her statement before the doctor, she has accepted her relationship with the applicant. In the statement recorded under Section 161 Cr.P.C., a diluted version has come that the applicant was friendly with the prosecutrix. But later in the statement recorded under Section 164 Cr.P.C., there are variations with respect to commission of offence upon her and establishing relationship forcefully by blackmailing her that he will make objectionable video viral. As per the medical examination report, the prosecutrix is aged about 16 years and there is no external or internal injury was found on her body. The applicant does not have any previous criminal history. 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 15.10.2018.
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.
The Apex Court in the case of Sanjay Chandra Vs. CBI, (2012) 1 SCC 40 has held that it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. Seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material on record, 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.
Order Date :- 26.2.2019 JK Yadav