Despite time being granted, no counter affidavit has been filed by learned AGA till date.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
Learned counsel for the applicant submitted that the accused-applicant has falsely been implicated in the present case. It has further been submitted that the applicant was not named in the FIR. The perusal of the statement of the prosecutrix under Section 164 Cr.P.C. reveals that there is no allegation of offence under Section 366-D IPC against the applicant. She has denied identifying the accused whereas the recovery memo clearly indicates that the prosecutrix identified the accused person on 25.7.2020, as such, the statement of the prosecutrix does not appear to be convincing. No other incriminating evidence is available on record against the applicant. The accused-applicant is languishing in jail since 25.07.2020 having no criminal history. It is further submitted that there is no possibility of the applicant fleeing away from judicial custody or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.
Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.
Let the applicant,Jalandhar @ Monu, involved in Case Crime No.285 of 2020, under Section 376-D IPC, Police Station - Dargah Sharief, District - Bahraich, be released on bail on his 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 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.
Order Date :- 3.2.2021 KR