Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28214 of 2021 Applicant :- Farmaan Alias Batta Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Mukesh Joshi,Rajesh Kumar Bind,S. Kamal Akhtar Khan Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri S. Kamal Akhtar Khan, learned counsel for the applicant and Sri Sanjay Singh, learned A.G.A. for the State and perused the material on record.
Vide order dated 06.08.2021, notice was issued to the opposite party No. 2. As per the office report dated 22.09.2021, a report regarding service of notice has been received. The report dated 06.09.2021 of the Chief Judicial Magistrate, Moradabad is on record which states that notice has been served on the opposite party No. 2.
No one appears on behalf of the opposite party No. 2 even when the matter is taken in the revised list.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Farmaan Alias Batta, seeking enlargement on bail during trial in connection with Case Crime No. 95 of 2021, under Sections 376 I.P.C. and 3/4 POCSO Act, registered at Police Station Mugalpura, District Moradabad.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the prosecutrix and the applicant were in a love affair since the last four months and the allegation is that the applicant established physical relationship on a false promise to marry her. The prosecutrix, when asked the applicant to marry her, he refused and then the present first information report has been registered. It is argued that in her statement recorded under Section 161 Cr.P.C., the prosecutrix has stated her age to be 18 years whereas, the doctor has opined her age to be about 17 years. It is argued that the prosecutrix is a major. The relationship between the prosecutrix and the applicant was on some understanding of marriage but the same could not materialize and then the present first information report has been registered. It is argued that the present case, is a case of consent. It has also been pointed out that the applicant is not having any criminal history as stated in para 22 of the affidavit and he is in jail since 05.06.2021.
Per contra, learned A.G.A. opposed the prayer for bail.
After having heard the learned counsel for the parties and perusing the record, it is apparent that the prosecutrix was in love with the applicant and there was physical relationship established between them by consent. There was some understanding between them with regards to marriage after which the prosecutrix asked the applicant to marry her but he refused and then the first information report has been registered.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Farmaan Alias Batta, 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 the 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 the 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 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 and the 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 the applicant.
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.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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 :- 27.9.2021 AS Rathore (Samit Gopal,J.)