Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28985 of 2019 Applicant :- Jitendra Opposite Party :- State Of U.P. Counsel for Applicant :- Pramod Kumar Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Pramod Kumar, learned counsel for the applicant and Sri Om Prakash Mishra, 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 with a prayer to enlarge him on bail in Case Crime No. 338 of 2018, under Sections 363, 366 I.P.C., Police Station-Partapur, District-Meerut, during the pendency of the trial.
It has been argued by learned counsel for the applicant that for the alleged incident dated 26th May, 2018, the first information report has been lodged on 26th May, 2018, by Kanta i.e. the mother of the victim, namely, Poonam against the applicant i.e. after two days from the date of incident for which no plausible explanation has been given, which makes the prosecution case doubtful. In the first information report, it has been alleged that on 26th May, 2018 at 03:00 p.m. the victim left her house, during her search, the informant came to know that the applicant enticed away the victim for which she has lodged the first information report. After recovery of the victim safely, her statement under Section 161 Cr.P.C. has been recorded wherein she has stated that on 26th may, 2018 at 03:00 p.m. she went along with the applicant. She married the applicant in a temple. However, in the statement recorded under Section 164 Cr.P.C., the victim has changed her version as stated in her statement under Section 161 Cr.P.C., by stating that she did not know as to on which date she went along with the applicant. The applicant took her for visiting along with him. She said to the applicant to drop her to her house, but the applicant ignored. She knew the applicant since last two years. The applicant married the victim forcefully at Gadh. After marriage she stayed with the applicant in a rented room for 2-4 days, where the applicant has not committed any offence upon her. Thereafter the applicant took her to his house. It has further been argued by the learned counsel for the applicant that seeing the variations in both the statements of the victim, the entire prosecution case appears to be wholly concocted. As per the medical examination report, the victim is 16 years old. The real fact is that the victim went along with the applicant for visiting to places of interest on her own free will and travelled with the applicant. It is impossible to believe that a grown up major girl can be taken in most crowded places against her will for such a long distance. There is no evidence that she ever protested or resisted the act of the applicant or made any complaint all this while. The victim was forced to give some incriminating statements against the applicant under coercive pressures. There is no independent or public witness from which it is established that the applicant is involved in the commission of 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 18th May, 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 :- 25.7.2019 Sushil/-