Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26376 of 2019 Applicant :- Himanshu Opposite Party :- State Of U.P.
Counsel for Applicant :- Pradeep Kumar Bhardwaj Counsel for Opposite Party :- G.A.,Vidit Narayan Mishra
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant as well as learned A.G.A for the State and perused the record.
By means of this application, the applicant who is involved in case crime no.1477 of 2018, under Section 376 IPC and Section 3/4 of POCSO Act, Police Station-Phase-3, District-Gautam Budh Nagar 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 father of the girl on the same day of the incident i.e. on 13.10.2018. The allegations made in the FIR is that her minor daughter was enticed away by the applicant and was confined in a room and later on, after recovery of the girl, she revealed that she was ravished by the applicant. The statement of the victim recorded under Section 161 and 164 Cr.P.C. and the medical report clearly shows that at every stage, she was making substantial improvement in the prosecution story. As per medical report, the age of the victim is 16 years. Giving the benefit of two years either way, she is major. As per the FIR, the girl was recovered from the bathroom of the applicant. She, on her own volition, joined the company of the applicant while coming back to her home. It is clearly indicative of the fact that she was in consensual relationship with the applicant. The applicant is languishing in jail since 14.10.2018.
Learned A.G.A opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
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-Himanshu, involved in case crime no.1477 of 2018, under Section 376 IPC and Section 3/4 of POCSO Act, Police Station-Phase-3, District-Gautam Budh Nagar 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 :- 25.9.2019 Sumit S