Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27388 of 2019 Applicant :- Jolly @ Maidi Sharma @ Nitish Kumar Sharma @ Sonu Pandit Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Amit Rai,Bhuvnesh Kumar Singh Counsel for Opposite Party :- G.A.,Pradeep Kumar Bishnoi
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned counsel for the complainant as well as learned A.G.A for the State and perused the record.
By means of this application, the applicant who is involved in case crime no.761 of 2018, under Section 363, 366, 368, 376D(A) IPC and Section 5/6 and 16/17 of POCSO Act, Police Station-Civil Lines, District-Moradabad is seeking enlargement on bail during the trial.
Submission made by learned counsel for the applicant is that the applicant is neither named in the FIR nor his name has been figured up in the 164 Cr.P.C. statement. The only role attributed to the applicant is that he was sitting in the room where the alleged offence took place. It is next contended that main accused as well as other co-accused who have been attributed the role of committing gang rape, were admitted on bail by co- ordinate Bench of this Court on different occasions, copies of which are annexed as Annexure-15 and 16 to the application. In this continuation, parity has also been claimed by saying that the case of the applicant stands on better footing than that of the abovesaid co-accused persons who have been enlarged on bail. The applicant is languishing in jail since 03.06.2019.
Learned A.G.A as well as learned counsel for the complainant opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and taking into account that the applicant is not named in the FIR and other co-accused persons, who have been attributed the role of gang rape, have been enlarged on bail, I am of the view that the applicant has made out a case for bail.
Let the applicant-Jolly @ Maidi Sharma @ Nitish Kumar Sharma @ Sonu Pandit, involved in case crime no.761 of 2018, under Section 363, 366, 368, 376D(A) IPC and Section 5/6 and 16/17 of POCSO Act, Police Station-Civil Lines, District-Moradabad be released on bail on 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 DATE 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 IPC.
(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., MAY BE ISSUED AND IF 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 IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court.
Order Date :- 27.9.2019/Sumit S