Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 57183 of 2019 Applicant :- Gabbu Alias Abdul Faij Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhishek Kumar,Anjani Kumar Rai Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
Submission is that the applicant has been implicated in this case for allegedly committing offence under Section 376D, 504, 506 I.P.C., 3/4 of POCSO Act , Section 3(2) (5), Section 3(2(5)K, 3(1)(da), 3(1)dha of SC/ST Act. It has been submitted that initially the applicant's bail application was rejected by the SC/ST Court and he approached this Court by way of appeal no.3826 of 2017, which was dismissed on 29.03.2018. After dismissal of appeal another bail application was moved, which was not maintainable, since appeal itself was dismissed and it was rejected on 26.03.2019. Thereafter, the applicant approached the POCSO Act Court at Azamgarh and moved second bail application. The same has now been rejected by the court below on 24.10.2019.
Learned counsel for the applicant has preferred this bail application under Section 439 Cr.P.C relying upon the judgment of this court in Criminal Misc. Bail Application No.33075 of 2018, wherein this court has held that after rejection of the bail application by the Special Judge, POCSO Court involving offences, both under the POCSO Act and SC/ST Act, the order would be final and bail would lie under Section 439 Cr.P.C before the High Court. Accordingly, it has been submitted that this bail is maintainable before this Court.
It has been submitted that the age of the victim as per medical report of C.M.O, Azamgarh is above 18 years. She has made allegation against the applicant and co- accused, Azad Ahmad , who has been enlarged on bail by this Court vide order dated 03.12.2018 in Criminal Appeal No.5757 of 2018. From the statement of the victim before the Trial Court, it appears there is parity in the role of the applicant along with the co-accused, Azad Ahmad. Even otherwise applicant is in jail since 30.05.2017. The applicant has no criminal history to his credit.
On the other hand learned AGA has opposed the prayer for bail but could not dispute the above submissions.
Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, submissions of the learned counsel for the parties noted herein above, larger mandate of the Article 21 of the Constitution of India 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, Gabbu alias Abdul Faij, involved in Case Crime No. 115 of 2017, under Sections 376D, 504, 506 IPC, 3/4 of POCSO Act, 3(2)5, 3(2)5K, 3(1)Da, 3(1)Dha of SC/ST, Police Station Gambirpur, District- Azamgarh 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 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 witness.
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 they are accused, or suspected of the commission of which they are 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 them from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.
Order Date :- 20.12.2019 SS