Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29796 of 2021 Applicant :- Hawaldar @ Dhodhe Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajeet Kumar Srivastava Counsel for Opposite Party :- G.A.,Pradeep Kumar Mishra
Hon'ble Samit Gopal,J.
Heard Sri Ajeet Kumar Srivastava, learned counsel for the applicant, Sri Pradeep Kumar Mishra, learned counsel for the first informant, Sri S. B. Maurya, 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 Hawaldar @ Dhodhe, seeking enlargement on bail during trial in connection with Case Crime No. 964 of 2017, under Sections 363, 366, 376, 506 I.P.C. and Section 3/4 Protection of Children from Sexual Offences Act, registered at P.S. Sarai Khawaja, District Jaunpur.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that incident in the present case is of 09.7.2017, after which an application under Section 156(3) Cr.P.C. was moved on the basis of which the present F.I.R. has been lodged on 09.8.2017. The prosecutrix returned back to her house on 13.7.2017. It is further argued that medical examination of the prosecutrix was conducted in which her age was found to be about 17 years. Learned counsel has argued that although the prosecutrix has in her statements under Sections 161 and 164 Cr.P.C. stated against the applicant but the same was under pressure of her family members. It is argued that the prosecutrix and the applicant had challenged the said F.I.R. in a writ petition being Criminal Misc. Writ Petition No. 2169 of 2018, Karishma and 2 others vs. State of U.P. and 2 others, before this Court in which a Division Bench vide order dated 31.1.2018 had directed that the statement of the prosecutrix be recorded under Sections 161 and 164 Cr.P.C. and in so far as the question of custody is concerned, the same shall be decided by the C.J.M. concerned in accordance with law, copy of the said order is annexure no. 6 to the affidavit. Since then the prosecutrix was with her parents.
It is argued that then the prosecutrix, in the meantime, again eloped with the applicant and started living with him. It is argued that in the statement under Section 164 Cr.P.C. the prosecutrix has stated that she was residing with the applicant as his wife. She was in a family way and was having pregnancy of three months. She wants to live with the applicant. It is argued that the charge sheet in the present matter was submitted which was challenged before this Court in Application U/S 482 No. 19274 of 2019 (Hawaldar@Ghoghe and another Vs. State of U.P. and another), copy of which is annexure no. 8 to the affidavit, in which the proceeding in so far as the applicant was stayed. But subsequently in compliance of order of the Apex Court, non bailable warrants were issued and the applicant has been arrested.
It is argued that the implication of the applicant in the present case is false and incorrect. It is argued that the prosecutrix went with the applicant out of her own sweet will and was living with the applicant as his wife without any resistance whatsoever. It is argued that the applicant has no previous criminal history as stated in para- 17. He is in jail since 4.1.2021.
Per contra, learned counsel for the first informant and learned AGA opposed the prayer for bail and argued that the applicant is named in the F.I.R., in the statements under Sections 161 and 164 Cr.P.C. of the prosecutrix. It is argued that as per High School Certificate of the prosecutrix, her date of birth is 05.7.2002 and as such she was aged about 15 years at the time of incident. It is argued that since the prosecutrix was a minor at the time of incident, her stating that she went with the applicant out of her own sweet will and lived with him will have no effect and no value. It is argued that there are allegations against the applicant.
After having heard learned counsels for the parties and perusing the record, it is evident that the prosecutrix has stated in her statement under Section 164 Cr.P.C. that she was having affair with the applicant for quite long period and then both of them decided to marry and then were living as husband and wife. She was also having a pregnancy of three months. The C.M.O. concerned has opined her age to be about 17 years and by giving variations of two years, she would be a major.
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- Hawaldar @ Dhodhe, 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.
(Samit Gopal,J.) Order Date :- 22.12.2021 Naresh