Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8546 of 2021 Applicant :- Kallo Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sanjay Mishra Counsel for Opposite Party :- G.A.,Ram Chandra Uttam
Hon'ble Samit Gopal,J.
Heard Sri Sanjay Mishra, learned counsel for the applicant and Sri B.B. Upadhyay, learned A.G.A. for the State and perused the material on record.
Sri Ram Chandra Uttam, learned counsel for the opposite party No.2 is not present even when the matter is taken in the revised list.
On 26.07.2021, learned counsel for the opposite party No.2 was granted two weeks' time to file counter affidavit after which he was further granted two weeks' time on 20.09.2021 for the same but till date, no counter affidavit has been filed by him as there is no office report for the same. Even learned counsel for the applicant states that he has not been served any counter affidavit on behalf of the first informant by the learned counsel appearing on his behalf.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Kallo, seeking enlargement on bail during trial in connection with Case Crime No. 27 of 2015 under Sections 376, 363, 366, 372 I.P.C. and Section 4/11/12 of Protection of Children from Sexual Offence Act, registered at Police Station Bindki, District Fatehpur.
The prosecution case as per the first information report lodged on 29.01.2015 by Jeete Lal, naming Smt. Kusma Devi, Pratap and Smt. Janki Devi as accused is that his daughter aged about 15 years was alone in the house on 26.12.2014. He and his wife had gone to the fields for work. The accused persons who are his neighbours have allured his daughter and enticed her away. He searched for his daughter but she could not be traced.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant is not named in the first information report. In the statement recorded under Section 161 Cr.P.C. of the first informant / Jeete Lal and his wife Somwati, the applicant is not named therein also. The prosecutrix was recovered on 30.04.2015 and her statement under Section 161 Cr.P.C. was recorded in which she stated that her parents had settled her marriage with one Vinod and pre-marriage ceremony was done after which she went with Vinod out of her own sweet-will. He is not at fault. They solemnized court marriage and were living as husband and wife. She wants to live with Vinod. She does not want to live with her parents. It is argued that subsequently the statement under Section 164 Cr.P.C. of the prosecutrix was recorded wherein, she has stated that she eloped with Vinod out of her own sweet-will and she has married with him. Her father got lodged the first information report on correct facts. The three persons named in the first information report have allured her. Pratap an accused in the first information report sold her for Rs. 30,000/-. Somwati her mother had brought her back. She has married with Vinod three months back. It is argued that subsequently the second statement of the prosecutrix was recorded under Section 161 Cr.P.C. on 20.12.2015 in which she states that Kusma, Pratap and his wife sold her for Rs. 30,000/- to Kallo (the present applicant), who raped her. Then after 15 days, Vinod took her with him and she married with Vinod. Vinod also committed illegal acts on her. She is having a pregnancy and the child is of Vinod. She is aged about 15 years.
Learned counsel argued that the Chief Medical Officer, Fatehpur has opined the age of the prosecutrix as that of 17 years. It is argued that the prosecutrix was having a pregnancy when she was medically examined on 01.05.2015 which was approximately of six weeks. It is argued that the name of the applicant has surfaced for the first time in the second statement of the prosecutrix recorded under Section 161 Cr.P.C. wherein, it is stated that she was sold to the applicant, who committed rape upon her. It is argued that the implication of the applicant is false and without any evidence. Learned counsel has further argued that although the first information report was lodged in the present matter on 29.01.2015 but the applicant surrendered before the concerned Court on 02.12.2020 after coming to know of his involvement in the matter. It is argued that on 17.07.2020, the police arrested Vinod and charge-sheet was submitted against him on 10.10.2020 on which cognizance was taken on 15.10.2020. In so far as the applicant is concerned, the investigation remained pending. It is argued that the police also never made any attempt to arrest the applicant. Paragraph 17 & 18 of the affidavit in support of bail applicant have been placed to buttress the said argument. It has also been pointed out that the applicant is not having any criminal history as stated in para 24 & 26 of the affidavit and he is in jail since 02.12.2020.
Per contra, learned A.G.A. opposed the prayer for bail and argued that the applicant is named in the second statement of the prosecutrix recorded under Section 161 Cr.P.C. He is stated to have given Rs. 30,000/- for purchase of the prosecutrix. It is argued that as such, the applicant is involved in the present matter. Although learned A.G.A. did not dispute the arguments and averments of paragraph 17 & 18 of the affidavit in so far it relates to the intervening period from 2015 to 2020.
After having heard the learned counsel for the parties and perusing the record, it is evident that the applicant is not named in the first information report. His implication is in the present case is after about 07 months in the second statement of the prosecutrix recorded under Section 161 Cr.P.C. There is no evidence on record to show that the applicant absconded in the present matter as the same is not stated in the instructions received by the learned A.G.A. from the concerned police station.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Kallo, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties will be of his family members and the other will be of a local member) 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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 I.P.C.
(v) 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 25.10.2021 AS Rathore (Samit Gopal,J.)