Court No. - 42
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18297 of 2019 Applicant :- Jiva Opposite Party :- State Of U.P.
Counsel for Applicant :- A.C.Srivastava,Samir Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri A.C. Srivastava, learned counsel for the applicant and Sri Om Prarkash Mishra, 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-Jiva with a prayer to enlarge him on bail in Case Crime No. 1825 of 2018, under Sections 363, 506, 366, 376, 120-B I.P.C. and Sections 3/4 POCSO Act, Police Station-Sihani, District- Ghaziabad, during the pendency of the trial.
It has been argued by learned counsel for the applicant that for the alleged incident dated 3rd September, 2018, the first information report has been lodged by the mother of the victim, namely, Anjali on 11th September, 2018 i.e. after eight days from the date of the 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 the victim was enticed away by the applicant along with three other named accused, namely, mother of the applicant and his two sisters, namely, Poonam and Monika. It has further been argued by the learned counsel for the applicant that in the statement recorded under Section 164 Cr.P.C., the victim has not supported the version as unfolded in the first information report by stating that two months ago, she left her house on her own free will. She has also complained of that her mother i.e. first informant used to beat her due to which she left her house. She knew the applicant and went along with him to Aligarh where they stayed for two months and she married the applicant in a temple. She had established physical relationship with him on her own sweet will. It has been argued by the learned counsel for the applicant that the parties appear to be consenting. Due to love affair of the victim with the applicant, he has been falsely implicated in the present case by the first informant who is the mother of the victim. The victim has also refused to get herself medically examined. As per medical examination report, the victim is 17 years old. 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 4th November, 2018.
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 :- 7.6.2019 Sushil/-