Court No. - 69
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2327 of 2019 Applicant :- Jagdish Opposite Party :- State Of U.P.
Counsel for Applicant :- Akhil Kumar Shukla Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Singh,J.
Heard Sri A.K.Shukla, learned counsel for the applicant and Sri Abhinav Prasad, learned A.G.A. appearing for the State and also perused the record.
It has been contended by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive and he has committed no offence. It is next contended that the FIR is unduly delayed for about 1 month and 7 days for which no plausible explanation has been given by the prosecution. It is further submitted that as per statement of the prosecutrix recorded under sections 161 & 164 Cr.P.C. she has stated that she had gone with the applicant out of her own volition and no allegation of rape has been levelled against the applicant. The prosecutrix was medically examined and as per medical report neither any internal or external injury was found on the person of the victim. The prosecutrix was a consenting party and has travelled several places for about 1 month and 7 days with the applicant and they are living as husband and wife. The court has also perused the order of this Court passed in Criminal Misc. Writ Petition No. 46707 of 2016. 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 25.12.2016. The applicant has no other reported criminal antecedent.
Learned A.G.A. has vehemently opposed the prayer for bail.
Considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge and reformative theory of punishment, and also considering the submissions advanced by learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 3 SCC 22, the applicant is entitled to be released on bail.
Without expressing any opinion on the merits of the case let the applicant Jagdish involved in Case Crime No. 797 of 2016, under Section 376 I.P.C. & 3/4 POCSO Act,Police Station Gursahaiganj, District Kannauj be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of court concerned with the 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.
In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail.
The trial court is directed to expedite the trial of the present case and conclude the same, preferably within a period of six months from the date of production of certified copy of the order, if there is no legal impediment,, keeping in view the law laid down by the Apex Court in the case of AlakhAlok Srivastava Vs. Union of India and another reported in AIR 2018(SC) 20.
Order Date :- 29.1.2019 IA