Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32467 of 2019 Applicant :- Hussain Opposite Party :- State Of U.P.
Counsel for Applicant :- Avinash Pandey Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Avinash Pandey, learned counsel for the applicant and learned A.G.A. for the State.
2. This application for bail has been filed by applicant- seeking his enlargement on bail in Case Crime No. 205 of 2018 under Sections 363 and 376D I.P.C. and Sections 3/4 POCSO Act, P.S.-Chilkana, District-Saharanpur, during the pendency of the trial in the above mentioned case crime number.
3. Perused the record.
4. In respect of an incident, which occurred on 17.06.2018, an F.I.R. dated 18.06.2018 was lodged by Kurban i.e. father of the victim, which was registered as Case Crime No. 0205 of 2018 under Sections 363 and 376D I.P.C. and Sections 3/4 POCSO Act, P.S.-Chilkana, District-Saharanpu. In the aforesaid F.I.R., five persons, namely, Shahzad, Shahrukh, Mubarik, Sandeep and Hussain (the present applicant) were nominated as the named accused.
5. Learned counsel for the applicant submits that the applicant is innocent and he has been falsely implicated in the above mentioned case crime number. The applicant is in jail since 16.10.2018. It is then submitted that out of five named accused, Shahrukh, Mubarik and Sandeep have already been enlarged on bail by this Court vide respective orders dated 03.07.2019 and 17.07.2019. It is further submitted by learned counsel for the applicant that this Court, while deciding the bail application of co-accused Sandeep, has clearly observed that the role of the other co-accused is similar whereas the role of taking away the victim to a secluded place has been attributed to co-accused Shahrukh. On the aforesaid factual premise, it is urged that the present applicant is also entitled to the same benefit as that extended to co-accused Shahrukh, Mubarik and Sandeep, who have already been enlarged on bail by this Court.
6. Per contra, the learned AGA has opposed the prayer for bail. However, the learned A.G.A. could not dispute the factual and legal submission made by the learned counsel for the applicant.
7. Having heard the learned counsel for the applicant, learned A.G.A. for the State and considering the nature of allegations and also the law laid down by the Apex Court in the case of Dataram Singh vs the State Of Uttar Pradesh reported in 2018 (3) SCC 22 but without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail. Accordingly, the bail application of the applicant is allowed.
8. Let the applicant-Hussain 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 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 I.P.C.
(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 I.P.C.
(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.
9. 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 and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 26.8.2019 YK