Court No. - 42
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20584 of 2019 Applicant :- Jitendra @ Fajihat Opposite Party :- State Of U.P.
Counsel for Applicant :- Raghvendra Prakash Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Raghvendra Prakash, learned counsel for the applicant and Mr. Amrit Raj Chaurasiya, learned A.G.A. for the State as well as perused the material on record.
The present bail application has been filed by the applicant- Jitendra @ Fajihat with a prayer to enlarge him on bail in Case Crime No. 211 of 2018, under Sections 376, 323, 504 and 506 I.P.C., Police Station-Tarwar, Distict-Azamgarh, during the pendency of the trial.
Learned counsel for the applicant submits that for the alleged incident dated 14th December, 2018, a non-cognizable report was lodged by the prosecutrix, namely, Shimirta Devi on the same day i.e. 14th December, 2018, wherein she has made allegation of being beaten by the applicant after using filthy language due to old enmity between the prosecutrix and the applicant, whereas in the first information report lodged on 21st December, 2018 by the prosecutrix herself for the said incident dated 14th December, 2018, for the first time, allegations of sexual assault being committed upon her by the applicant have been introduced by her. Variations in the non-cognizable report, first information report as well as in the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C., go to show that the applicant has been falsely implicated in the present case. It has further been argued that it is impossible to believe that the prosecutrix, who is 80 years old being like mother of the applicant be sexually assaulted by the applicant. As per the medical examination report, there was no external or internal injury on the body of the prosecutrix. The applicant has not committed the alleged offence. The applicant has no criminal antecedents to his credit except the present one. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 7th January, 2019.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail. However, the learned A.G.A. could not dispute the factual submissions as urged by the learned counsel for the applicant.
Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and the material on record as well as the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Another reported in (2018) 3 SCC 22 and without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to 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.
(Manju Rani Chauhan, J.) Order Date :- 3.6.2019 Sushil/-