Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46289 of 2021 Applicant :- Irfan Alias Boby Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sushil Kumar Tewari Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Singh,J.
Heard learned counsel for the applicant, learned AGA, appearing for the State and perused the material brought on record.
It has been contended by the learned counsel for the applicant that the applicant has been falsely implicated in the present case due to ulterior motive. It is next contended that the first information report dated 22.1.2019 is a counter blast version to the first information report dated 24.12.2018 lodged by the applicant, Mohammad Irfan @ Boby against Smt. Huda, Azizur Rahman @ Baba, Zishan and Zikran for the offence under Sections 376, 511, 120-B, 323, 354,354 (Kha), 506 IPC and Section 7, 8, 9 and 10 of POCSO Act, police station Majhola, district Moradabad. It is also submitted that the applicant was approached this Court by filing Criminal Misc. Writ Petition No. 7588 of 2019, in which the arrest of the applicant was stayed by this Court vide order dated 28.3.2019 till the submission of police report under Section 173(2) Cr.P.C. It is also submitted that co- accused, namely, Zeeshan has already been enlarged on bail by another Bench of this Court vide order dated 2.12.2019 passed in Criminal Misc. Bail Application No. 30228 of 2019. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused has also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been submitted that the applicant is languishing in jail since 10.8.2021.
Learned A.G.A. has vehemently opposed the prayer.
Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons.
Having heard the submissions of learned counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merit of the case, I find it to be a case of bail.
Let applicant- Irfan @ Boby be released on bail in Case Crime No. 42 of 2019, under Sctions 376-D A, 354, 506 IPC and 5/6 and 9/10 POCSO Act, police station Majhola, district Moradabad on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 of the Indian Penal Code.
(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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.
In case of breach of of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 20.12.2021 Sumaira