Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31033 of 2019 Applicant :- Hariom Opposite Party :- State Of U.P.
Counsel for Applicant :- Govind Saran Hajela Counsel for Opposite Party :- G.A.,Mukesh Chandra Gupta
Hon'ble Rahul Chaturvedi,J.
Pleadings have been exchanged between the parties.
Heard learned counsel for the applicant, learned counsel for the complainant as well as learned A.G.A and perused the record.
By means of this application, the applicant who is involved in case crime no.152 of 2019, under Section 376, 354-D, 506 IPC and Section 67-A of I.T. Act, Police Station-Sadar Bazar, District-Agra is seeking enlargement on bail during the trial.
Submission made by learned counsel for the applicant is that the FIR was got registered by the prosecutrix herself on 21.02.2019 with the allegation that from 15.08.2018 to 30.01.2019, the applicant after blackmailing her, sexually exploited her and eventually on aforementioned date, the FIR was got registered under Section 376, 506 IPC and Section 66E and 67a of I.T. Act. The next submission is that the prosecutrix is a married woman of 30 years and has married to army personnel whose husband is posted in Assam. She along with her small kid resides at Agra in her rented accommodation. The next contention is that during this period, the applicant has developed certain amount of affinity with the victim and thereafter, started sexual exploitation with her. It is further alleged that applicant has taken certain obscene photographs and used to blackmail her with threat that he would make it viral. Learned counsel for the applicant has drawn the attention of the Court to the recovery of the said mobile from which those nude photographs were taken. The said phone was recovered from the residential accommodation belongs to the prosecutrix herself. It is contended by learned counsel that it is a million dollar question as to how and under what circumstances, the said mobile was found in the accommodation of victim. It is the victim who has to give a satisfactory explanation of the said recovery of mobile in question. The entire gamut of circumstances shows that there was consensual relationship between them in which victim herself has actively participated for 4-5 good months and not only this, those nude photographs were taken with her consent and that is why, the said phone was found inside the temple of her house.The applicant is languishing in jail since 23.02.2019.
Learned counsel for the complainant has drawn the attention of the Court to the statement of the victim recorded under Section 164 Cr.P.C. with emphasis that there is no whisper of consensual relationship between the victim and applicant.
I have keenly gone through the rival submissions made by learned counsel for the parties. The conduct of the victim clearly shows that both of them have spent quality time with each other and the said photographs were taken with the consent of the lady. The recovery of mobile from the residence of the victim throws ample light about the depth of their relationship.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the applicant-Hariom, involved in case crime no.152 of 2019, under Section 376, 354-D, 506 IPC and Section 67-A of I.T. Act, Police Station-Sadar Bazar, District-Agra be released on bail 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 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.
(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 IPC.
(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., 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 IPC.
(iv) 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.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court.
Order Date :- 26.9.2019 Sumit S