Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16969 of 2019 Applicant :- Farhan Opposite Party :- State Of U.P.
Counsel for Applicant :- Rajiv Lochan Shukla,Dinesh Chandra Pandey,Dina Nath Joshi Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
Heard Shri Rajiv Lochan Shukla, Shri Dina Nath Joshi and Shri Rajshri Gupta, learned counsel for the applicant and learned AGA for the State.
Submission of learned counsel for the applicant is that applicant is innocent and is not named in the FIR. Informant is the so called mother of the victim girl. Offence is said to have been committed on 17.12.2016. FIR was lodged on 01.04.2017. Although victim girl is not recovered till today yet the parties approached this Court through the application under Section 482 Cr.P.C. and criminal misc. writs. Referring to the FIR, it is also argued that initially FIR was lodged for the offence under Sections 363, 366 IPC and Section 8 POCSO Act against Lodha, Asad Driver and Nausad. Investigation was going-on but name of applicant surfaced in the present matter during investigation on the basis of affidavit of the informant and also statement recorded under Section 164 Cr.P.C. Referring to the affidavit filed on behalf of informant during investigation on 08.08.2017, it is next contended that when informant was examined before the trial court on oath, she has specifically stated that the said affidavit was moved due to pressure of the police concerned. In fact, applicant was not involved in the present matter. Regarding statement recorded under Section 164 Cr.P.C., it is next contended that police concerned created undue pressure upon the informant and due to that reason, name of the applicant was stated in the statement under Section 164 Cr.P.C. Learned counsel for the applicant also referred to the entire document annexed with the application and argued that applicant is in jail since 07.10.2017. There is no chance for tampering the evidence or threatening the witnesses. Applicant is languishing in jail in this matter without any evidence. It is next contended that although number of criminal cases are said to be pending against the applicant yet all cases have been explained in the affidavit. Thus, referring to the entire evidence and the statement of the victim recorded during trial, prayer for bail is made.
On the other hand, learned AGA argued that although applicant was not named in the FIR yet his name surfaced in the affidavit filed by the informant and also in the statement recorded under Section 164 Cr.P.C.. It is further submitted that victim girl is yet to be recovered and her whereabouts is not known till today. Statement made by PW-1 the informant during trial shall be scrutinized by the trial court at the time of final disposal. At this stage, a prima facie case is made out against the applicant. Since number of criminal cases are pending against the applicant and there is sufficient evidence to connect the applicant with the present matter, the present bail application is not liable to be allowed.
In this matter, as is evident from the record, applicant was not named in the FIR. Informant approached this Court and on intervention / direction of this Court, police started investigation. During investigation, an affidavit was filed by the informant naming the present applicant and other co-accused. She has also named the applicant in her statement under Section 164 Cr.P.C.. But when she was examined before the court on oath during trial, she resiled from her previous statements recorded during investigation and stated that affidavit filed by her during investigation and the statement recorded under Section 164 Cr.P.C. were result of undue pressure of the police. She has specifically stated that present applicant was not involved in the present matter.
Having heard learned counsel for the parties going through the entire record including the statement of the informant recorded during trial, although victim is still to be recovered yet keeping in view the nature of offence, evidence, complicity of accused and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant Farhan involved in Case Crime No. 341 of 2017, under Sections 363, 366, 376-D, 366-A, 120-B IPC and Section 8/5/6 POCSO Act, P.S. Dhoomanganj, District - Allahabad be released on bail on furnishing a personal bond and two heavy sureties (not less than Rs. 15 lakhs) each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witnesses.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
6. The applicant shall deposit his passport with the trial court within two weeks from the date of his release from prison and if he has no passport, he shall swear to it on affidavit within the same period and shall not leave the country without prior permission of the court concerned.
7. The applicant shall appear in person before the police station concerned on every fortnight regularly. On his appearance, the concerned S.H.O. / S.O. shall prepare a report regarding conduct of the applicant and same shall be furnished before the S.S.P. / S.P. concerned on the next day, who will assess the conduct of the applicant keeping in view the conditions imposed in the order granting bail to the applicant.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 26.4.2019 Sanjeet