Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26112 of 2021 Applicant :- Karan Nishad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pankaj Kushwaha Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up in the revised list.
Sri Pankaj Kushwaha, learned counsel for the applicant and Sri Bare Lal Bind, learned brief holder for the State are present.
Notice was issued to the opposite party no. 2 vide order dated 05.8.2021. As per office report dated 21.9.2021 a report of C.J.M., Gorakhpur has been received and a perusal of the same which is dated 2.9.2021 it is apparent that notice has been served personally on the opposite party no. 2.
No one appears on behalf of the opposite party no. 2 even when the matter has been taken up in the revised list. Service of notice upon the opposite party no. 2 is sufficient. Thus the Court proceeds to hear the matter.
Heard learned counsels for parties present and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Karan Nishad, seeking enlargement on bail during trial in Sessions Trial No. 656 of 2020, arising out of Case Crime No. 553 of 2020, under Sections 363, 366, 376 I.P.C. and Section 5/6 POCSO Act, registered at P.S. Kampeirganj, District Gorakhpur.
Learned counsel for the applicant argued that although the applicant is named in the F.I.R. but his implication in the present case is false. It is argued that the prosecutrix in her statements recorded under Sections 161 and 164 Cr.P.C. has stated that she was in love with the applicant and out of her own sweet will she went with him. It is argued that as per the medical examination report the prosecutrix is opined to be aged about 17 years. It is further argued that the present case is a case of consent.
It is argued that the trial in the present case has started and the first informant Chunni Lal was examined as P.W.-1 who did not support the prosecution case and was declared hostile. Even before the trial court the prosecutrix was examined as P.W.-2 who also did not support the prosecution case and was declared hostile. Copies of the said statements have been annexed as annexure no. 7 to the affidavit, which have been placed before the Court. It is argued that as such implication of the applicant is false and with malafide intentions. It is argued that the applicant has no other criminal antecedents as stated in para-22 of the affidavit and is in jail since 23.7.2020.
Per contra, learned State counsel opposed the prayer for bail and argued that in the F.I.R. there is an allegation against the applicant of his enticing away the daughter of the first informant.
After having heard learned counsels for the parties and perusing the record, it is evident that the prosecutrix in her statements recoded under Sections 161 and 164 Cr.P.C. has stated that she went with the applicant out of her own sweet will and in the trial court, the first informant and the prosecutrix did not support the prosecution case.
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- Karan Nishad, be released on bail in the aforesaid case crime number 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 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 :- 24.9.2021 Naresh (Samit Gopal,J.)