Court No. - 52 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20540 of 2021 Applicant :- Hasim Opposite Party :- State of U.P.
Counsel for Applicant :- Avinash Pandey Counsel for Opposite Party :- G.A.,D.M.Tripathi Hon'ble Samit Gopal,J.
Heard Sri Avinash Pandey, learned counsel for the applicant, Sri D.M. Tripathi, learned counsel for the opposite party no. 2, Sri Sanjay Kumar Singh, learned AGA for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Hasim, seeking enlargement on bail during trial in connection with Case Crime No. 27 of 2021, under Section 354 Kha I.P.C. and Sections 9m/10 POCSO Act, registered at P.S. Kairana, District Shamli.
Learned counsel for the first informant states that although he was granted time on 08.10.2021 to file counter affidavit but he does not intend to file any counter affidavit in the matter.
The prosecution case as per the F.I.R. lodged on 18.1.2021 at about 14:46 hours, under Sections 354(Kha) I.P.C. and Sections 9m/10 POCSO Act, by Irshad naming the applicant as the sole accused, is that his daughter aged about six years had gone to his sister's house on 10.01.2021. On 17.01.2021 at about 4.00 P.M. Hasim the present applicant, allured the victim and took her to a room situated near a temple. The sister of the first informant after coming to know about it went there and saw that the applicant had taken out payjama of his daughter and was himself in a half nude condition. After seeing her he tried to run away upon which the sister of the first informant and Sudhir tried to catch him but could not apprehend him. Later on, on 18.1.2021 at the same place the applicant was found standing where he was beaten and apprehended and then was taken to the police station. The F.I.R. was thus lodged.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the F.I.R. has been lodged after an explained delay of one day. It is argued that there was no occasion for the applicant to be present at the place of incident on the next date, if he was seen by the sister of the first informant in an objectionable position along with the victim girl. It is argued that the victim girl was medically examined but the doctor did not find any external mark of injury on her body. The victim has not named the applicant in her statements recorded under Section 161 and 164 Cr.P.C. Even there is no allegation of the applicant indulging in any physical activity with the victim.
Learned counsel has argued that the applicant has been falsely implicated in the present case as there was some dispute between the children with regards to a ball due to which the first informant got annoyed and then the F.I.R. was lodged with a delay of one day. Para-10 has been placed before the Court to buttress the said argument. Leaned counsel for the applicant argued that investigation in the matter has completed and the police has submitted charge sheet against the applicant and as such there is no chance of the applicant tempering with the evidence and not co-operating in the investigation. It is argued that the applicant has no other criminal antecedents as stated in para-14 of the affidavit and is in jail since 18.1.2021.
Per contra, learned AGA and learned counsel for the opposite party no. 2 opposed the prayer for bail and argued that the victim girl is aged about six years and the applicant had taken her away with him and was seen in semi nude condition with her.
After having heard learned counsels for the parties and perusing the record, it is evident that the applicant has not been named by the victim in her statements recorded under Sections 161 and 164 Cr.P.C. The F.I.R. has been lodged after an unexplained delay of one day. In the facts of the case the delay of one day in lodging of the F.I.R. is quite material.
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- Hasim, 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.
(Samit Gopal,J.)
Order Date :- 28.10.2021/Naresh